FOCUS: COMMERCIAL PROPERTY: Does the current pandemic give rise to claims for the non-payment of commercial rent?

April 5, 2020

The impact of the Coronavirus has been felt across all sectors, and on a global scale.  Life has been interrupted on a social and economic level.  The virus’s reinfection rate has given cause to governments and world leaders to make fast decisions on how to deal with the pandemic to avoid further contamination and spread of the disease. This has had a knock-on and profound impact on commercial businesses that rely on consumer trade. The United Arab Emirates has taken extensive measures on both a sociological and economic level. Precautionary measures to protect society include the closing of all restaurants, coffee shops and outlets providing food and drink, as well as other shops and commercial centers. Such decisions may seem extreme, however, were necessary to protect the health and safety of residents. Naturally, by forcing businesses to cease trade, business owners may find themselves still liable for rent payments, but without the necessary revenue generated from commercial activity. The solution The solution lies in the provisions of articles contained in the Civil Transactions Law of the United Arab Emirates which confirms that the rental entitlement is linked to the payment of the benefit from the leased property. Whereas, Article 750 of the same law stipulates that “the rent shall be due upon the enjoyment of use being derived, or when it becomes capable of being derived”. Furthermore, Article 781 stipulates that “the complete loss of enjoyment of the leased property shall release the lessee from paying the rent as of the occurrence of such loss.” Additionally, Article 782 stipulates that “where the full enjoyment of the leased property is prevented due to an act of the competent authorities, without cause attributed to the lessee, the lease shall be rescinded, and the rent forfeited as of the date of such prevention”. Such articles furnish tenants with rights to revoke, reduce and even not pay rent, for the duration of which commercial activities have been prevented. Therefore, where authorities have issued a temporary suspension of commercial activities across the UAE, the role of the judiciary (in the event of disputes between the lessors and tenants), is to balance the revocation or reduction or non-payment of the rent during that temporary period. Whereof, the decisions issued are temporary in nature, we find that judges may more likely allow for tenants to pay a reduced rent or zero rent during the commercial suspension period. It is less likely they will allow the revocation of lease contracts in its entirety. In conclusion, in light of the impact the coronavirus is having across all businesses, we recommend that landlords/lessors take into consideration the exceptional circumstances businesses find themselves in, and refrain from making stringent rent demands. This will safeguard the lessee – lessor relationship and such good-will would not only avoid unnecessary conflict and potential losses but will contribute to generating stronger relationships between landlord and tenant with a long-term view. Should you have any inquiries related to force majeure or the impact of COVID19 on your commercial leases, please get in touch with Wael Deyab on +971 4321 1000 or by email at wael.deyab@alsuwaidi.ae

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