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22nd October 2020

Ensure that Temporary Concession does not become Permanent

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As London has now entered Tier 2 (high) of the Government’s Local Covid Alert Levels and more parts of England are moved into tier 3 (very high) areas of regulation the difficulties facing the continuation of business increase.

Many are seeking to adapt and innovate their offering in order to ensure they can continue to trade through the pandemic. With many offices empty and cafes, pubs and restaurants (if open at all) closing by 10pm, the traditional city and town landscape has altered, maybe permanently.

One factor that should always be examined when a change of business type at a property is being considered is the restrictions which affect that use. In the majority of cases property rights and uses are limited whether it is by planning or mortgage restrictions or a covenant or right referred to in the legal title. Such restrictions are interpreted by a court as to what the parties might have intended at the time the restriction, lease or easement was entered into not what may be appropriate in the time of a global pandemic.

Current circumstances have encouraged short term collaborative and practical approaches to breaches of restrictions and rights, however there is inherent danger in any such breach being ignored or accepted in the mid to longer term as this may risk the ability to enforce compliance in the future. If parties are aware of a breach whether it is a change of use, intensification of use of a right of way or failure to pay monies due but fail to enforce compliance then the right to do so can be lost. The government is encouraging all parties including landlords and tenants to co-operate with each other for mutual benefit but it is imperative that any concessions intended to be temporary in nature do not inadvertently become permanent by default and should therefore be fully documented.

For assistance in documenting any such agreement or other commercial property matter please contact Carolynn Davies on 07833 091678 or click here to email Carolynn.