Guidance for termination of commercial leases and mortgages during COVID-19
Many commercial lease arrangements in Aotearoa New Zealand will have been affected by the response to COVID-19. Tenants may be unable to pay their rent as their business is not fully operating. Landlords may also be unable to meet their mortgage payments.
The Government has taken steps to support those businesses.
On 16 May 2020, some temporary law changes were made to support tenants and landlords in this difficult situation. These changes make it easier to retain lease arrangements and get back to business as usual after the pandemic by giving parties more time to fulfil their payment obligations before the other side can take enforcement action. These are changes made to the Property Law Act 2007 as part of the COVID-19 Response (Further Management Measures) Legislation Act 2020. The changes relating to leases apply to commercial tenants and their landlords. The changes relating to mortgages apply to all mortgages, including residential and commercial as well as mortgages relating to goods (such as a business’s assets other than land and buildings). However, we anticipate that mortgage holidays are likely to be the first port of call for residential borrowers.
This guidance provides more information about the impacts of the COVID-19 response and the law changes and should help commercial tenants and landlords find an approach that works for both. The Ministry of Justice has prepared this guidance in consultation with the New Zealand Law Society | Te Kāhui Ture o Aotearoa (Law Society).
How are commercial leases and mortgages affected by the response to COVID-19?
For commercial leases, the impact of COVID-19 means that:
- many businesses renting commercial property were or are unable to fully operate and may not be able to access or use their premises in the normal way (for example, because they are not essential services)
- as a result, commercial tenants may have temporary difficulty paying the rent and outgoings, and
- commercial landlords who have mortgages may, in turn, have trouble making mortgage payments.
This may require the parties to think about what happens with the lease and with mortgages. Commercial landlords or tenants may consider terminating leases. Tenants have an interest in reducing their rent. Borrowers may face the sale of their property by lenders if they cannot service the mortgage.
Some of these challenges are likely to continue to some extent even when restrictions are relaxed or lifted. For example, many businesses may take some time to re-establish their business, may not be allowed to provide the full range of their services (for example, businesses catering for large conferences or other gatherings), or have to operate at reduced capacity, such as restaurants. In addition, there is an uncertainty about Alert Levels shifting up and down as has been the case several times since early 2020.
What should commercial landlords, tenants, lenders and borrowers do?
As many commercial landlords, tenants, lenders and borrowers have already done, the best approach is to work together constructively to find a solution which is sustainable and will meet all parties’ needs and interests.
The Government has made some temporary law changes to give commercial tenants and landlords a better chance to get through this difficult situation and help ensure that the parties will share the financial pain of the COVID-19 pandemic. You should talk to your lawyers and real estate professionals to discuss what the current situation means for you, what the law changes may mean and what to do next.
What are the law changes that have already been made to support commercial landlords, tenants, lenders and borrowers?
On 16 May 2020, a law change was made giving commercial tenants more time to catch up on overdue rent before a landlord can take steps to evict them.
Normally, the law says that a commercial landlord must give a tenant at least 10 working days’ notice before cancelling a lease because of overdue rent.
Under the changes, the notice period is extended from 10 working days to 30 working days. This means commercial tenants have more time to catch up with rent payments before the tenant can be evicted. If the tenant is not able to catch up, the tenant has more time to approach the landlord to negotiate temporary changes to the rent or lease agreement to help the tenant get by until it can resume operating as usual.
What about the landlord’s mortgage repayments?
If commercial tenants are having difficulty paying rent, that may make it difficult for landlords to keep up with their mortgage payments. The law changes also give borrowers (including landlords) more time to catch up on overdue mortgage payments before a lender can take steps to enforce the mortgage.
The current law says that lenders must give 20 working days’ notice before they use their powers to take possession of, or sell, the mortgaged property. The temporary law changes extend that period to 40 working days.
This change will apply to all mortgages, including residential and commercial, and regardless of whether the mortgaged property is tenanted. However, we anticipate that mortgage holidays are likely to be the first port of call for residential borrowers.
These temporary law changes mean that, like commercial tenants, borrowers have a better chance to get through the COVID-19 situation and temporary financial hardship. They still have the same payment obligations but have more time to remedy breaches or defaults.
What are the rules for mortgaged goods other than real property?
The law changes also extend the notice timeframes in the case of mortgaged goods owned by a business. This could be a mortgaged fleet of vehicles.
For these types of mortgages, the timeframes are temporarily changed from 10 to 30 working days before the lender can take enforcement action.
When do these law changes apply?
The law changes in the COVID-19 Response (Further Management Measures) Legislation Act 2020 came into force on 16 May 2020. The changes were, however, backdated so that they apply from 1 April 2020 to ensure they applied to all tenants and borrowers affected by the measures first taken to respond to COVID-19.
This is a temporary change to provide relief to tenants and borrowers affected by the response to COVID-19 and allow more time for parties to discuss how they may get through this period and resume business when the Alert Level allows for it. The law will return to the current timeframes six months after the end of the Epidemic Preparedness (COVID-19) Notice 2020. The current notice expires on 20 September 2021 but is likely to be renewed.
If your lease or mortgage is affected by COVID-19, you may like to talk to a lawyer about how the law changes apply to your circumstances. This is particularly important if you are a tenant who has been given notice of overdue rent payments, or a borrower who has been given notice of overdue mortgage payments.
Landlords and lenders who are considering taking action to enforce leases and mortgages should also consider first getting legal advice.
What is the purpose of these changes?
The changes aim to support commercial landlords, tenants and borrowers through the COVID-19 situation. They provide relief for businesses, to help them stay solvent through the pandemic, which will help New Zealand’s economic recovery. They are part of a wider government package of business support.
More information on the broader business support measures is available on the Government’s COVID-19 website:
Government COVID-19 website(external link)
Do these changes apply to my residential lease or mortgage?
The changes in the Bill do not apply to residential tenancies. For those leases, information can be found here:
COVID-19 information for residential tenants and landlords
(external link)
These changes to the Property Law Act apply to all mortgages over land, whether for commercial or for residential property. However, there may also be other options available for residential mortgages, such as a mortgage repayment holiday arranged with banks.
Where can I find more information about the law changes?
The main contact for parties having issues with commercial leases or mortgages should be their lawyers.
Commercial landlords and tenants can also ask their real estate professionals, such as real estate agents or property managers, for support when discussing new arrangements.
The Real Estate Authority is the regulator for agents facilitating commercial leases:
Real Estate Authority website(external link)
The Ministry of Justice is responsible for real estate laws, in particular the Property Law Act 2007.
Ministry of Justice(external link)
The New Zealand Law Society regularly publishes information on the legal impacts of COVID-19 on its website:
New Zealand Law Society latest news(external link)
Information on the Government’s COVID-19 economic package and business support is available on Treasury’s website and the Government’s COVID-19 website:
Treasury's website(external link)
Government COVID-19 website(external link)
The Ministry of Business, Innovation and Employment (MBIE) and the Ministry of Housing and Urban Development (HUD) have information on residential tenancies, including on changes made to the Residential Tenancies Act 1986 in 2021:
MBIE's COVID-19 information for landlords and tenants(external link)
HUD's COVID-19 information for landlords and tenants(external link)
COVID-19 response level measures apply to all of us
The purpose of the response to COVID-19 is to save lives. Everybody needs to stick to the rules of physical distancing and only operate businesses to the extent this is allowed under the applicable Alert Level.
Across the world, millions of businesses are affected in one way or other by COVID-19. Parties to commercial leases are expected to share the financial burden of the COVID-19 impacts. Continue to be kind, cooperate and try to find a good way forward which works for both parties considering these unprecedented circumstances.
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