COVID-19: Challenges relating to lease agreements and insurance

Lease agreements

Whilst tenants are struggling to pay rent due to business shut down, some landlords are demanding full payment.

Property Industry Group Retail tenant assistance

In light of SA’s extended lockdown to limit the impacts of the COVID-19 pandemic, the Property Industry Group (PI Group) has increased and extended its assistance and relief guideline for retail tenants.

➔ PI Group retail tenant assistance and relief guidelines

Contact

For more information, contact either Nadine Briers on 082 888 0939 / nbriers@growthpoint.co.za or Anne Lovell on 083 651 7777 / anne@marketingconcepts.co.za.

Can force majeure be claimed for my rental agreement?

Although this depends on your lease agreement, generally speaking, if you are completely shut down then “force majeure” creates a situation where it is impossible for the tenant to perform according to his lease agreement due to a supervening law. In short the tenant can not be held responsible and there is no doubt that legitimate reliance on force majeure/supervening impossibility and the principle of rental remission will receive sympathy from the courts.

Will operating as a take away restaurant mean I forfeit my chances of being able to claim force majeure for my rental agreement?

Stores and restaurants who are partially functioning can rely on this common law and negotiate a payment holiday and/or discount or partial rent. This is also applicable post-lockdown due to damages caused during lockdown.

Where can I find more information?

Insurance

What is the FSCA’s stance on business interruption insurance as a result of COVID-19?

The Financial Sector Conduct Authority (FSCA) is responsible for market conduct regulation and supervision.

➔ COVID-19 – Regulatory Response: The Financial Sector Conduct Authority’s stance on business interruption insurance

Whilst there is positive news for the majority of policy holders with BI extensions in this regulatory response, further opinion and action may follow. We will keep you updated.

For more communication from the FSCA regarding industry communication, please follow these steps:
⇢ Visit the FSCA COVID-19 Industry Communication web page
⇢ Scroll down and select Insurer / Micro Insurer
⇢ Then select FSCA Communication

What is the status of the TTA Joint Effort Regarding Insurance Issues as at 24 May 2020

With regard to the business insurance issues related to COVID-19, we have consulted various relevant specialists and professionals who advise that the following course of action would be the most likely to succeed in ensuring that the insurance companies treat you, the insured fairly (Treating Customers Fairly is a firm requirement of Financial Sector Conduct Authority).

It is important to note that this document is purely our opinion and proposes how we intend to approach this matter. We would like our members to present a unified front and approach the insurance companies in a coordinated manner. Be advised that anything said by us herein is purely our opinion which is communicated without prejudice and we reserve the right to amend or withdraw it, or part thereof, at any stage. The content hereof is not intended to be legal or other advice, and should not be interpreted or construed as such.

➔ TTA Joint Effort Regarding Insurance Issues as at 24 May 2020 [Member access required]

Contact

Should you wish to receive legal opinions and advice and join a possible class action send an email with your insurance policy to submit@tshwanetourism.com and Burden Swart Botha & Maluleke attorneys will make contact with you.

More information

Communication re COVID-19 – Regulatory response: Business Interruption Insurance

What should I look out for in my insurance policy should my restaurant remains closed?

Under the newly proposed risk-adjusted lockdown rules, businesses in general and restaurants in particular have a lot to consider – not least of which is their insurance cover.

If a business chooses not to open because it would not be financially viable under the COVID-19 restrictions, what would the implications be regarding insurance cover?

In this article – Your insurance policy – what to look out for when your restaurant remains closed – we shed some light on the most important insurance issues to consider – read .

How can I get help from the TTA regarding insurance matters?

The TTA is collating information to assist members with insurance matters related to claims related to COVID-19 and the National Lockdown. Please urgently complete the following questionnaire to assist us to determine the best way forward:

➔ Complete the questionnaire

What can I do about the non-payment of business interruptions insurance claims?

Olive Insurance Brokers have compiled the following information for our TTA members:

➔ Argument against the non-payment of insurance claims of contingent business interruptions and cancellation of bookings [Member access required]

Do you have questions? Please send them to secretary@tshwanetourism.com and we will endeavor to find the answers.