Covid-19 Secure – what are the immediate common interest implications for landlords and tenants of multi-occupancy offices?

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Dominic Hordern
Mills & Reeve, London
dominic.hordern@mills-reeve.com

Patrick Phipps
Mills & Reeve, London
patrick.phipps@mills-reeve.com

Introduction

The United Kingdom government has set out guidance concerning the measures expected from employers to ensure the safety of employees returning to work. While it applies where employees cannot work from home, it also acts as a guide for when there is a wider return to office working. Landlords and tenants of multi-occupancy offices will need to carry out full risk assessments addressing the workplace risks of Covid-19.

While a lot of the focus will be on businesses as employers, there will be a common interest between landlords and tenants of multi-occupancy workplaces to ensure any measures for re-occupation ensure the safety of everyone whilst minimising disruption. This article reviews some of the immediate practical and legal questions that both landlords and tenants need to be considering.

Should I worry about what my tenant/landlord is doing and/or communicate with them?

Yes. The Covid-19 Secure measures form part of the health and safety framework which impacts on all employers, their employees and visitors to their premises.

Health and safety legislation places responsibilities on both landlords and tenants to eliminate or control risks in respect of visitors to their premises and not just while they are within their four walls. Some of these are shared or common interest responsibilities and the impact of Covid-19 Secure will require both parties to work together.

Each employer must complete a full Covid-19 risk assessment and make this available to its staff. These should be shared between building management and tenants in order for them to work together to share and develop plans which ensure the safe return to work for all occupiers and visitors (not just their own).

How do the social distancing guidelines impact access to or within my premises?

Landlords generally retain responsibility for the common parts of a property. Careful consideration needs to be given by the landlord or building management on how people gain safe access to and egress from the property while maintaining social distancing measures. Pinch points need careful management, including, for example:

• reception/lobby areas;
• lifts/stairs;
• car parking;
• communal facilities such as toilets, cycle park, changing and shower areas; and
• loading bays.

Consulting with interested parties and sharing these plans with them is vitally important in safeguarding all occupiers and visitors to the building.

Tenants should consider the impact of such access constraints for their employees and visitors and how these might affect working arrangements. Tenants should share their plans for re-occupation (including those of their sub-tenants) with the building management or landlord along with a copy of their risk assessment. All parties may need to revise their risk assessments as occupations within a building increase.

Are there any legal issues with changing the use of common areas?

When making changes to common areas, landlords will need to be aware of the impact on the rights granted to tenants in their leases. Leases will not always allow landlords to remove or re-designate common parts or allow landlords or tenants to appropriate common parts for their own use.

Both sides will have to accept that there may be a need to agree to/temporarily interfere with, or extend, rights granted to tenants in order to meet the practical and legal requirements, such as the closure of showers or small meeting rooms. However, both parties need to comply with their health and safety obligations and find common ground, albeit by agreement in many cases.

If something is necessary to satisfy the Covid-19 Secure obligations, then a party may be able to argue it has or should be given the right to do it. However, the position is not always going to be that cut and dried. Therefore, the parties will have to come to an agreement and record it appropriately. In some cases, because this impacts on other users, a site-wide approach will be needed as well as engagement with other landowners or authorities.

All involved need to be aware of the legal requirement to make reasonable adjustments for those with disabilities to ensure they have safe access.

What practical issues are there when preparing a building for reoccupation?

If a building or space has been unoccupied, landlords and tenants should ensure that an appropriate level of planned maintenance has been undertaken.

Thought should be given to any additional actions that are required prior to occupiers returning to work such as:

• air handling plant – filters, flushing etc;
• checking water systems;
• deep clean of common parts/office spaces;
• increased levels of cleaning/sanitising/janitorial service;
• increased security/reception staff presence; and
• new signage to help visitors implement new policies.

Both landlords and tenants should be checking with their insurers for any new requirements they have or intend to issue. Most leases require tenant compliance with the requirements of a landlord’s insurer, but these should be notified to tenants.

Does a tenant need approval for its alterations and signage?

Being Covid-19 Secure will, in most cases, require some tenant alterations. While most leases require tenants to comply with statutory requirements, a tenant’s lease will still govern what approval is needed from its landlord and any superior landlord.

Some of those alterations will require a landlord’s approval and, commonly, where those alterations are internal and non-structural, that consent should not be unreasonably withheld or delayed. Delay will be a key factor here and to avoid disputes both parties should ensure there are clear and responsive lines of communication. Splitting out essential or minor alterations from the more complex will be one way to improve approval times.

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