Managing an insolvent tenant can be a challenging situation for landlords. As recovery options become more limited, it’s crucial to understand the steps that can help protect your interests and navigate the complexities of commercial tenant insolvency. Here are five essential strategies to consider:
1. Scrutinise Rent Deposit Agreements
Begin by reviewing the terms of any rent deposit agreement you have with the tenant. Understand how the deposit is held and when it can be utilised. This knowledge will lay the groundwork for your next steps.
2. Assess the Tenant’s Insolvency Status
Identify the type of insolvency process your tenant is undergoing. If the tenant has entered administration, a statutory moratorium is in place, preventing legal proceedings without court or administrator consent. This insight will shape your approach.
3. Leverage the Right of Hypothec (Scotland)
In Scotland, landlords have a unique right known as the hypothec. This grants landlords a security interest in the tenant’s movable property within the leased premises. You can recover outstanding pre-insolvency rent up to the value of the tenant’s movable assets.
This right is realised through the sale of the movable property and is limited to items owned by the tenant. Items on lease or hire purchase are excluded. Promptly notify the insolvency practitioner of your intent to exercise the hypothec and document the movable assets present. Prior discussions on hypothec are available here.
4. Monitor the Use of the Property
During administration or liquidation, if the property remains in use by the insolvent tenant, the rent due in that period might be categorised as an administration or liquidation expense. Such expenses hold priority over floating charges or unsecured creditors.
5. Retain the Lease Until a Replacement Tenant is Found
When other recovery avenues seem uncertain, it might be wise to retain the lease during insolvency proceedings to avoid potential liability for business rates. The decision to keep the lease in place is at the landlord’s discretion. Keep in mind that, due to a recent ruling, the existence of the lease might not prevent liability for water rates. Our detailed discussion on this subject is accessible here.
Navigating insolvency scenarios requires a keen understanding of legal complexities and a proactive approach to safeguard your rights as a landlord. If you find yourself dealing with an insolvent tenant, seeking advice from property solicitors with expertise in commercial tenant insolvency can provide valuable guidance tailored to your specific situation.
Summing up
In cases of tenant insolvency, the intricacies of landlord and tenant relationships are underrated. The landlord’s position as a creditor and the tenant’s status as a debtor come into sharp focus, especially concerning rent arrears. Legal advice becomes pivotal as insolvency proceedings commence, aligning with statutes like the Courts and Enforcement Act 2007. The landlord may seek to recover rent through various avenues, such as Commercial Rent Arrears Recovery (CRAR) while navigating complex scenarios like corporate insolvency and liquidation. The role of insolvency practitioners and liquidators further intertwines with the lease agreement, impacting the repayment structure and preferential creditors. From navigating non-payment of rent during a pandemic-induced moratorium to considering winding up or bankruptcy petitions, the interplay between landlords, tenants, and the legal framework remains pivotal in determining the course of action.
In summary, addressing insolvency situations involving tenants demands a comprehensive strategy that aligns with both legal requirements and your objectives as a landlord. By leveraging these top five strategies and seeking specialised advice from experts like Simplicity Legal, you can optimise your approach and navigate the intricacies of insolvency proceedings more effectively.
