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On the 10th May, Prime Minister Boris Johnson, said “you should go to work if you can’t work from home. And to ensure you are safe… we have been working to establish new guidance to make workplaces COVID-secure.” A core principle of the new guidance is the ‘deep cleaning’ of the working environment.
As businesses prepare for a COVID-secure return to work, what impact might this have on a commercial landlord?
Many leases will have an obligation on the landlord to ‘keep clean’ the common parts of the building. Such an obligation could very likely extend to deep cleaning during and following a pandemic.
For many landlords of commercial premises, this would focus on the deep cleaning of entrances, stairways, lifts and receptions, all areas where the communal use of door handles and bannisters and frequency of human interaction could make it a crucial area of the building to thoroughly clean, thereby invoking the landlord’s obligation.
As businesses grapple with the challenges of restricted re-openings it’s likely many tenants, now returning to their workplaces, will turn to their landlord and expect them to:
a) carry out this function and
b) do so in a timely fashion. The risk to the landlord is that a failure to do so could constitute a breach of a landlord’s covenant.
If the landlord is obliged to carry out a deep clean of common parts, is it able to recover the cost of that through the service charge?
In almost all commercial leases there will be a clause in the service charge provisions allowing the landlord to charge for ‘additional services’, alongside the services specified in the lease.
Often this will be written in the context that the landlord is permitted to include any additional services it sees fit to include in the service charge, in accordance with the principles of good estate management and for the benefit of the building’s occupiers. Such a provision enables the landlord a degree of flexibility should it be obliged to provide an unexpected future service (such as a common area deep clean). Leases which do not include such a provision will make it harder for landlords to charge their tenants.
So in a word; yes, it is likely most landlords will be able to recoup the costs of a deep cleaning from their tenants. However, this will be strictly dependant on the terms of the lease and any other services and service charge agreement between the landlord and tenant.
Are there any other considerations?
Yes, landlords need to be fully aware of their health and safety obligations in engaging any of their own employees to conduct a deep clean. Landlords should abide by all government guidance in relation to providing personal protective equipment (PPE) that may be required, as well as social distancing at work rules. Landlords also have a responsibility under health and safety law for the safety of everyone visiting the common parts, including any professional cleaning agency that a landlord may appoint to undertake the deep clean on their behalf. The landlord has a duty to do everything ‘reasonably practicable’ to mitigate and manage any health and safety risks in the common areas.
If you’re a landlord facing a deep clean liability or a tenant unsure of whose responsibility it is to keep the common areas clean, then contact our Head of Commercial Property, Simon Wake.
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