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房东与租客之租金博弈 - Legal rights for Landlord or Tenant during lockdown [ 05/05/2020 ]

The level 4 or level 3 lockdown has raised the question of whether the lockdown constitutes a denial of a leases that contain "denial of access clauses” in ADLS lease document clause 27.5.



Clause 27.5 states:

If there is an emergency and the Tenant is unable to gain access to the premises to fully conduct the Tenant’s business from the premises because of reasons of safety of the public or property or the need to prevent or overcome any hazard, harm or loss that may be associated with the emergency including: . . .

(c) Restriction on occupation of the premises by any competent authority .Then a fair proportion of the rent and outgoings shall cease to be payable for the period commencing on the date when the Tenant became unable to gain access to the premises to fully conduct the Tenant’s business from the premises until the inability ceases.



(c) 任何主管当局限制对商业场所的使用,在租客无法进入商业场所以充分开展商业业务使用之日到完全开展商业业务期间内,不再支付相当比例的租金和支出。

Clause 47.1(d) defines an "emergency” to mean a situation that:

(a) Is a result of any event, whether natural or otherwise, including an … epidemic; and

(b) Causes or may cause loss of life or serious injury, illness or in any way seriously endangers the safety of the public or property; and

(c) The event is not caused by any act or omission of the landlord or tenant.


(a)是任何自然或其他事件的结果,包括……流行病; 和

(b)造成或可能造成生命损失或严重伤害,疾病或以任何方式严重危害公众或财产安全的; 和


租客权利 v 房东权利

The current covid-19 epidemic we are facing is arguably supported under this clause.

As tenants unable to gain access to the premises to fully conduct business, clause 27.5 states that the tenant would not be liable for a proportion of rent and outgoings from when the tenant became unable to gain access until that inability ceases. It is also important to know that clause 27.5 operates automatically, no notice from the tenant is required.

由于租户无法进入该场所以充分开展业务,因此第27.5条规定,从租户变得无法进入之时起,直到这种正常进入开展业务为止,租户将不承担一定比例的租金和支出。 同样重要的是要知道第27.5条是自动运行的,不需要租户通知。

So, what does this mean for you as a tenant?
This means that rent may be negotiated. Keeping in mind the outcome should determine a fair proportion. Under the current circumstances, generally a 50/50 share of the rental could be a starting point and negotiating from there.

这意味着可以协商租金。 牢记结果应该确定合理的比例。 在当前情况下,通常可以将租金的50/50份额作为起点并以此进行谈判。

Even if your lease agreement is pre 2012 or is bespoke, it does not mean that there isn’t an argument that can be made. It is highly arguable that the pandemic with Covid-19 is an occasion that has frustrated many contracts, and obligations of the contract cannot be fulfilled.
即使您的租赁协议是2012年前的或定制的,也并不意味着没有论据。 极有争议的是,Covid-19新冠病毒的大流行是使许多标准合同条款面临挑战,合同的义务无法履行。

On the other hand, The ADLS lease prevents a Tenant from withholding rent. The Tenant is obliged to pay the rent without any deductions or set off. Therefore, if the Tenant is unable to reach agreement with the Landlord the Tenant is obliged to make payments of rent and opex as and when they fall due pending reaching an agreement to avoid technically being in default under the lease.
另一方面,ADLS租赁合同规定租客有义务全款缴付租金, 不得抵扣。 因此如果承租人无法与房东达成协议,则承租人有义务在达成协议之前在到期时全额支付租金和运营费用,如地税,管理费等,以避免从技术上讲违约。

If there is no agreement can be reached between Landlord and Tenant, both the Landlord and Tenant have rights to refer the matter to a mediation or attribution for a dispute resolution process specified in the lease.

Fair proportion does not authorize the Tenant not to pay any rental or opex because they are unable to access the premises. It is abundantly obvious that Tenants continue to have some form of occupation of the premises for example furnishers, sign, stocks, plant, physical address for post, equipment and others.

In some instances, we note some Landlords are indicating a willingness to consider rent abatements and/or deferments of obligations of rent payments for periods longer than the level 4 or level 3 lockdown.

We must stress that Tenant’s failure to either engage with its Landlord or simply to refuse to pay any rent or opex raises a real risk that their lease as being in default. Tenants also need to recognise that the closedown is not an excuse to simply not pay rent or opex.
我们必须强调,承租人未与房东沟通合作,或者直接拒付房租或运营支出,其本质增加了真正违约风险。 承租人还需要认识到,停业并不是简单地不支付租金或运营支出的借口。

Tenants should also keep in mind that if they are in default under the lease this could potentially have implications under personal guarantees or existing bank guarantees/rent bonds. In this regard Tenants may find that Landlords have exercised their rights against the bank guarantee or rent bond and that there are obligations to top up under the terms of the lease once some form of normality returns.
承租人还应记住,如果他们在租约下违约,这可能会对个人担保或现有银行担保/租金保证券产生影响。 在这方面,承租人可能会发现房东已经行使了对银行担保或租金保证金的法律兑现权利,倘若如此承租人在法律上有义务根据租赁条款充值保障银行担保/租金保证卷金额回到正常担保状态。

Theoretically, the landlord could serve termination notice on tenant for their default under lease. But the Landlord must serve the due notices under the Property Law Act and provide the statutory timeframe for a Tenant to rectify any default.
从理论上讲,房东可以就租约中的停付租金违约现象向租户送达终止租约通知。 但是房东必须根据《物权法》送达适当合法的通知,并为租户提供法定时限以纠正任何违约情况。

Both Landlord and Tenant would also have to consider the availability of an application to the Court for urgent relief against cancellation. In the circumstances in particular if the issue is around agreement on what is a fair proportion of abatement, it is highly likely the Court would be sympathetic to a Tenants request for such orders. But this will be decided on case by case basis.
房东和租户也都必须考虑是否可以向法院提出取消租约紧急救济申请。 特别是在这种情况下,如果问题是是围绕减免租金合理比例的问题,则法院很有可能会同情房客的请求,但还是会根据个案情况做出决定。

One other hand, Tenant and landlord both needs check their business insurance, although most insurance companies are refusing to respond to this situation under business interruption or loss of rent policies. Most policies have contained exclusions in relation to notifiable diseases and pandemics since the SARS epidemic but it would still be wise to check your policy, If the insurance covered the said pandemics, the issues may be resolved by insurance funds and those benefits must be passed under the provisions of the lease.
另一方面,租户和房东都需要检查他们的商业保险,尽管大多数保险公司拒绝在商业中断或租金政策损失的情况下拒绝理赔。 自从SARS流行以来,大多数保单都排除了包含相关疾病和流行病的投保,但首先检查您的保单仍然是明智的。如果保险可以理赔,也许可以解决房东与租户间的租金矛盾。

The final aspect to be considered is that the Government has indicated the prospect of some form of financial package for hopefully Landlords and Tenants. Any arrangements entered into in the interim should be carefully perused by lawyers and worded to ensure those legal rights and allow for future changes.
最后要考虑的方面是,政府已经为房东和租客提出某种形式财务方案。 过渡期间与任何方作出的任何财务安排均应由资深律师仔细解读,并在措辞上加以保证,以确保权利得到保障及将来可以进行更改。

Hong Hu Lawyers has about 20 years legal practice experiences in New Zealand and many years in other countries like Australia, are ready, able and willing to provide quality and practical legal advice and assistance to our clients in relation to these new matters both from a Landlord and Tenant perspective including suggestions on the framework for such arrangements.

Hong Hu Lawyers does not represent or warrant that this article provided any legal advice to you, on the basis that you have such responsibility for any loss, damage or consequence resulting directly or indirectly from this article, therefore seek your own legal advice please.