Costs of making common parts COVID-19 compliant
As businesses look to return to work tenants of multi-let buildings will not only need to ensure that their own premises are compliant with the Government guidance for working safely during the coronavirus but they will also need to liaise with their landlords as to the use of any common parts. At the same time landlords will need to consider what their obligations are in relation to these common areas and how the costs of compliance will be met.
In order to maintain social distancing within common parts and in order to ensure that these can be safely used, landlords will need to consider measures such as the installation of bike racks, lockers, additional toilet and changing facilities. They will also need to provide more frequent and thorough cleansing of the common parts, including ensuring a sufficient supply of hand sanitiser throughout not just the washing facilities but the common areas as a whole.
The Government guidance suggests avoiding touchpad access where possible but this could mean installing an entirely new card access system. In addition, many buildings will have had some of their mechanical and electrical systems switched off or working to reduced levels during the lockdown. Government guidance suggests that these systems must be tested, inspected and serviced if necessary, before restarting them.
Supplying these extra facilities, additional cleaning and extra system checks may be expensive and landlord and tenants alike will want to know who will bear these costs. A landlord of a multi-let building will be responsible for maintenance of the common parts but the costs of this are usually recoverable via a service charge. The question therefore is whether these additional costs will fall within the service charge? Whilst many service charge provisions contain a general “sweep up clause” allowing the landlord to recover any reasonable costs incurred in providing services in accordance with the principles of good estate management, the service charge provisions in each lease may differ if a particular tenant has managed to agree an exclusion or a service charge cap on their liability. Costs incurred as a result of complying with any relevant legislation relating to the use of common parts is usually covered by the service charge but the current guidance is not mandatory so costs incurred complying with this may not fall within the service charge provisions.
Landlords and Tenants alike should therefore check the terms of the service charge provisions in their leases carefully to see where the cost of making common parts safe lies.
For more information or if you have any queries please contact our Head of Commercial Property, Julia Ferguson