The easing of the COVID-19 restrictions in line with the Government's roadmap sees the return to work for essential and non-essential workers in five separate phases. The reopening of multi-let units has raised concerns for landlords in respect of their obligations in implementing building management strategies during current and future COVID-19 restrictions.
Here, Aidan Marsh discusses the recommended steps landlords of multi-let office buildings should take in order to safeguard their position and limit potential exposure.
- Landlords should implement building management strategies.
- Lease obligations should be checked.
- Communication between tenants and landlords is more important than ever.
- Mitigating against potential litigation.
Building management strategies
Landlords should endeavour to take all prudent steps in implementing their building management strategies in light of the COVID-19 virus. In addition, the government and the Health and Safety Authority have published a protocol, together with checklists and templates containing recommended measures to make workplaces safe and suitable for employees to return to in the current circumstances. A court may refer to the guidance documents issued in deciding whether a landlord took prudent and reasonable steps to safeguard the building.
Obligations under the lease
The obligations of both landlords and tenants are governed by the terms of each specific lease and each lease should be reviewed in its entirety. Generally, commercial leases do not contain an express provision dictating how a landlord is to respond in a pandemic situation. Additional measures undertaken by the landlord in safeguarding the building may possibly be recouped as part of the service charge, depending on the relevant service charge provisions.
Communication between landlords and tenants
So that tenants and their employees feel safe in the building, it is important that landlords continue to engage with the tenants. If additional safety measures are undertaken by the landlord, the tenants should be kept informed of same by written correspondence. This strengthens the confidence between the parties and can avoid any potential disputes arising if a landlord seeks to recoup the cost of implementing such additional building management strategies.
Dealing with potential claims
If a claim is made by a third party against a landlord alleging that the party contracted COVID-19 from the building common areas in some way, landlords will want to demonstrate that they took all reasonable steps to make the building safe for its occupants. Landlords should liaise with their insurance advisors in respect of any additional insurance coverage available to account for potential COVID-19 related claims.
We encourage landlords to implement appropriate measures to ensure that they are well placed to defend any potential claim they may face in light of COVID-19. We have provided a general overview of the issues that may arise, however each claim turns on its own facts and a full review of the lease and ancillary agreements should be carried out.
For more information or to discuss any COVID-19 related issues impacting your business, please get in touch with your usual Beauchamps contact, or Aidan Marsh & Gerry Gallen (Property), Dorit McCann (EU, Competition & Procurement), Barry Cahir (Litigation and Insolvency), Thomas O'Dwyer & Sharon Delaney (Litigation), Sandra Masterson Power & Paul Gough (Employment), or Damian Maloney (Corporate and Commercial).