Jonathan Hughes
Partner | Legal
Jersey
Partner
Jersey
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Due to the COVID-19 pandemic the Jersey Courts are giving priority to criminal cases and those involving children and are unlikely to be dealing with matters relating to property, including proceedings for rent arrears, lease cancellation, orders for possession and eviction (Tenancy Disputes). The Government of Jersey has issued Guidance for both commercial and residential leases (Guidance) to be read in conjunction with Practice Directions to be issued by the Courts to encourage Landlords and Tenants to negotiate temporary compromises in lease obligations in a reasonable manner if either party gets into financial difficulties arising from the COVID-19 pandemic.
In relation to Residential Tenancies this has also been supplemented by Regulations which temporarily amend the Residential Tenancy Law (Jersey) 2011 (Law).
This Briefing Note deals solely with Residential Tenancies. We have issued a separate Briefing Note regarding Commercial Leases which you can find here.
The Guidance does not operate to release either party from its obligations and only operates during the period specified by Practice Directions. Whilst the Guidance is advisory and compliance with it is voluntary, the Courts will be entitled to take into account the conduct of both Landlord and Tenant in any future Tenancy Disputes (which the Government hopes will be a matter of last resort) once the moratorium on Tenant Disputes ends and may draw adverse inferences and make such orders as it sees fit in respect of any non-compliance with the Guidance
In contrast the Regulations have the force of Law.
The COVID-19 (Residential Tenancy) (Temporary Amendment of Law) Regulations 2020 (Regulations) were approved by the States of Jersey on 9 April 2020 and come into effect on 10th April 2020 and last until 30 September 2020 (Covid-19 Period) and only apply to Residential Tenancies under the Law.
The Regulations amend the Law during the Covid-19 Period and provide as follows;
1.1 If any fixed term Residential Tenancy comes to an end during the Covid-19 Period it will continue as a periodic tenancy unless the Landlord and Tenant either enter into a new tenancy or both agree that it comes to an end.
1.2 A Landlord cannot give a Tenant a notice to terminate the Residential Tenancy during the Covid-19 Period unless both Landlord and Tenant agree that notice can be given.
1.3 Where prior to the coming into force of the Regulations either a Landlord or a Tenant has given notice to the other under the Law to terminate the Residential Tenancy, if the date specified in the notice has not yet passed, the Tenant can give written notice to the Landlord that the Tenant intends to remain in the accommodation and the tenancy continues as a periodic tenancy.
1.4 Where a Tenant has received notice from the Landlord prior to the coming into force of the Regulations terminating the Residential Tenancy and the date specified therein has passed, if the Tenant is unable to vacate the premises as a result of the Covid-19 outbreak, the Tenant may remain in occupation and the tenancy continues as a periodic tenancy.
1.5 Where prior to the coming into force of the Regulations a prospective tenant and a Landlord have entered into an agreement (either orally or in writing) for a Residential Tenancy to commence during the Covid-19 Period and the prospective tenant has not yet taken occupation of the premises which are not vacant due to an existing Tenant remaining in occupation under the Regulations, the Landlord must advise the prospective tenant as soon as is practicable that the accommodation is no longer available and the parties are released from their obligations and the Landlord must return any sums paid in advance.
1.6 A Landlord cannot increase the rent of the Residential Tenancy at any time during the Covid-19 Period or make any variation to the Residential Tenancy conditional upon a rent increase that takes effect during the Covid-19 Period. If the Landlord has notified a Tenant prior to the coming into force of the Regulations of a rent increase and this has not yet taken effect, it must not take effect until 1 October 2020. Any Landlord who does not comply with these particular provisions commits an offence and is liable to fine of level 3 on the standard scale (currently £10,000).
1.7 A breach of lease resulting from non-payment of rent or others sums will not be a breach that can result in lease termination or eviction if the Tenant has advised the Landlord in writing that this breach is due to financial hardship arising from the COVID19 outbreak, provided that the tenant has provided appropriate supporting evidence in line with the Guidance. The Landlord cannot charge interest on arrears of rent or other sums during the Covid-19 Period. This does not affect the liability of the Tenant to pay the rent nor does it affect the Court's ability to award interest if it decides that the breach was not caused by financial hardship arising from the COVID19 outbreak. .
1.8 The Minister for Children and Housing must issue Guidance under the Regulations and can vary the regulations by Order.
2.1 Types of leases to which the Residential Guidance is applicable.
Any lease, tenancy, licence or other agreement which provides for the occupation of any residential accommodation. This includes serviced accommodation and accommodation provided by an employer. This differs from the Regulations which only apply to Residential Tenancies as defined in the Law.
2.2 Guiding Principles
Both parties must act in an open, transparent, humane and reasonable manner under the Guidance.
2.3 Tenant Hardship.
1.4 Landlord Hardship
1.5 Effect of Temporary Voluntary Arrangement
1.6 Non Compliance with the Guidance
As indicated above the Guidance is advisory and compliance with it is voluntary but the Courts will be entitled to take into account the conduct of both Landlord and Tenant in any future Tenancy Dispute and may draw adverse inferences and make such orders as it sees fit in respect of any non-compliance withthe Guidance.
Ogier is a professional services firm with the knowledge and expertise to handle the most demanding and complex transactions and provide expert, efficient and cost-effective services to all our clients. We regularly win awards for the quality of our client service, our work and our people.
This client briefing has been prepared for clients and professional associates of Ogier. The information and expressions of opinion which it contains are not intended to be a comprehensive study or to provide legal advice and should not be treated as a substitute for specific advice concerning individual situations.
Regulatory information can be found under Legal Notice
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