FAQs

Real Estate & Construction

What are the obligations of landlords and tenants in relation to minimising the spread of the COVID-19 virus at the building or the leased premises?

Algeria - Bourabiat Associés

Both tenants and landlords are required under Law 88-07 on health, safety and occupational medicine (Law 88-07) to put in place reasonable measures to safeguard the health and welfare of workers and all persons lawfully present at the leased premises or building. Some of the measures taken in relation to COVID-19 include the provision of hand sanitisers and social distancing. Ordinarily, the tenant would be responsible for the leased premises while the landlord would be responsible for the common areas of the building (which would be paid out of the service charge paid by all the tenants occupying the building).

Ethiopia - Mesfin Tafesse & Associates

By virtue of the principle of good faith and the obligations incorporated under Article 2916 and 2921 of the Civil Code, both the lessee and lessor are required to safeguard and maintain the leased premises and the building in good condition and care. Ordinarily, the lessor shall warrant to the lessee the peaceful enjoyment of the building during the currency of the lease, whereas the lessee shall use the immovable leased with all necessary care and according to the purpose stated in the lease agreement.

Kenya - Anjarwalla & Khanna

Both tenants and landlords are required under the Occupation Safety and Health Act (No. 15 of 2007) (OSHA) to put in place reasonable measures to safeguard the health and welfare of workers and all persons lawfully present at the leased premises and the building. Some of the measures taken in relation to the COVID-19 virus include the provision of hand sanitisation and social distancing. Ordinarily, the tenant would be responsible for the leased premises while the landlord would be responsible for the common areas of the building (which would be paid for using part of the service charge paid by all the tenants occupying the building).

Malawi - Savjani & Co.

Section 13 (2)(e) of the Occupational Safety, Health and Welfare Act, 1997 (the OSHWA) provides that employers   are obligated to provide and maintain a working environment that is safe, without risks to health and adequate as regards facilities and arrangements for their welfare at work.  Section 13 (3) of the OSHWA provides that it is the duty of employers to prepare and as often as may be, appropriately revise a written statement of the general policy with respect to the safety and health at workplace of their employees. The OSHWA’s requirements would apply to tenants who are occupiers and employers or landlords who may be owner-occupiers or have management staff occupying a particular premise.

Section 27 (1) of the OSHWA provides that every occupier shall provide sufficient and suitable sanitary conveniences for persons employed in the workplace. This duty to provide sufficient and suitable sanitation in a workplace or building may also fall on a landlord where the employer is the tenant or occupier, although in our view it would be incumbent on the employer to seek premises that offer suitable sanitation for employees.

Section 28 (1)  of the OSHWA provides that occupiers must provide at least one (1) hand wash basin for every twenty (20) employees, which shall be kept in clean and orderly condition.

Mauritius - BLC Robert & Associates

Section 5 of the Mauritian Occupational Safety and Health Act 2005 imposes a duty on employers to provide and maintain a working environment that is safe and without risks to health.  The landlord, as the employer would need to comply with this provision and in addition should provide information, instruction, training and supervision as is necessary to ensure the safety and health at work of employees, and ensure that any person not in his employment is not exposed to any risk of safety or health.

Where sanitary conveniences, washing facilities, facilities for the taking of meals or mess are used in common by several tenants, the owner of the building shall be responsible for their cleanliness and maintenance.

Morocco - BFR & Associés

Pursuant to Article 10 of Law No. 67-12 relating to the organization of contractual relationships between landlords and tenants of premises for residential or professional use, the landlord shall maintain the premises in such a way as to permit their use in accordance with the provisions of the contract and to carry out all necessary repairs for its preservation and maintenance.

Under these conditions, a tenant must allow their landlord to carry out any work necessary to maintain and preserve the leased premises as well as urgent repairs which cannot be deferred until the end of the lease contract.

With regard to commercial leases, the obligations of the landlords and tenants are expressly provided for in the Moroccan Code of Obligations and Contracts and the provisions of the lease agreement.

For instance, the lease may provide that the landlord shall carry out, at its expense, maintenance and repairs that are not the responsibility of the tenant, including maintenance and repairs provided for under laws or regulations or the agreement, and in particular the work necessary for the use of the premises and the construction or major repair work on the buildings provided for in Article 707 of the Moroccan Code of Obligations and Contracts. This may include major work to bring the premises into conformity and compliance with standards imposed by injunctions or legal or regulatory requirements applicable to the premises and/or the tenant's activity.

Some of the measures taken in relation to COVID-19 include the provision of hand sanitization and social distancing. Ordinarily, the tenant would be responsible for the leased premises while the landlord would be responsible for the common areas of the building (which would be paid for using part of the service charge paid by all the tenants occupying the building).

Nigeria - G.Elias & Co.

Section 20 of the Public Health Law of Lagos State, 2015 (PHL) places an obligation on the landlord as the owner of a building to inform the medical officer of health as soon as he is aware of a person suffering from an infectious disease. In this instance, the landlord should report any case of COVID-19 to the Nigeria Centre for Disease Control. Tenants as occupiers in a building also have the same obligation as a landlord.

In addition, section 30 of the PHL provides that any landlord who knowingly lets out a house that has been occupied by a person with an infectious disease commits an offence and is liable to a non-custodial sentence or fine of ₦200,000 (Approx. USD556).

Please note that our response here is confined to the laws applicable in Lagos State, Nigeria, one of the 36 states in Nigeria.

Rwanda - K. Solutions & Partners

Both tenants and landlords are required to observe Government guidelines to put in place reasonable measures to safeguard the health and welfare of workers and all persons lawfully present at the leased premises and the building. Some of the measures taken in relation to the COVID-19 virus include the provision of hand sanitisation and social distancing. Ordinarily, the tenant would be responsible for the leased premises while the landlord would be responsible for the common areas of the building (which would be paid for using part of the service charge paid by all the tenants occupying the building).

Tanzania - A&K Tanzania

Both tenants and landlords are required under the Occupational Health and Safety Act (No. 5 of 2003) (OSHA) to put in place reasonable measures to safeguard the health and welfare of workers and all persons lawfully present at the leased premises and the building. Some of the measures taken in relation to the COVID-19 virus include the provision of hand sanitisation and social distancing. Ordinarily, the tenant would be responsible for the leased premises while the landlord would be responsible for the common areas of the building (which would be paid for using part of the service charge paid by all the tenants occupying the building).

Uganda - MMAKS Advocates

Every owner or occupier of land who becomes aware that any person residing on his or her premises is suffering from a notifiable disease is required under the Public Health (Notifiable Diseases) Rules SI 281-21 to notify the local authority who shall in turn notify the medical officer of health.

COVID-19 was designated as a notifiable disease under the Public Health (Notification of COVID-19) Order 2020 released on 25 March 2020 and passed by the Minister under the Public Health Act, Chapter 281 of the Laws of Uganda.

Some of the measures taken in relation to the COVID-19 virus include the provision of hand sanitisation and social distancing. Ordinarily, the tenant would be responsible for the leased premises while the landlord would be responsible for the common areas of the building (which would be paid for using part of the service charge paid by all the tenants occupying the building).

Zambia - Musa Dudhia & Co.

The President has directed the closure of night clubs, bars, and cinemas. There are currently no legal obligations on landlords and tenants to minimise the spread of Covid-19.COVID-19.

UAE - Anjarwalla Collins & Haidermota

Both tenants and landlords are required under Federal Law No. 5 of 1985 relating to Civil Transactions (the “UAE Civil Code”) to put in place reasonable measures to safeguard the health and welfare of workers and all persons lawfully present at the leased premises and/or the building. Some of the measures taken in relation to COVID-19 include the provision of hand sanitation facilities and social distancing. Ordinarily, the tenant would be responsible for the leased premises while the landlord would be responsible for the common areas of the building (which would be paid for using part of the service charge paid by all the tenants occupying the building).

Can the Government order the closure of the whole or a part of a building?

Algeria - Bourabiat Associés

Under the Health law No.18-11 dated 2 July 2018 (the Law 18-11), the Government may make rules prohibiting any person from using any building for any purposes whatsoever if such use poses a risk of the spread of any infectious disease or for the purposes of prevention, control or suppression of an infectious disease.

Ethiopia - Mesfin Tafesse & Associates

Yes. Pursuant to the Food and Medicine Proclamation No. 1112/2019, the Food, Medicine and Healthcare Administration and Control Proclamation No. 661/2009 and the Food, Medicine and Healthcare Administration and Control Regulation No. 299/2013, the Ethiopian Public Health Institute is empowered to take measures that would control communicable diseases including ordering the closure of schools and other public spaces, and taking other necessary measures.

Furthermore, under the State of Emergency Regulation No. 03/2020, the government may order any property owner to surrender its property (buildings, house, hotel, apartments, vehicles) for the purpose of containing the spread of the virus. The only exception is if the property owner uses the property for his/her daily life.

Kenya - Anjarwalla & Khanna

Under the Public Health Act, 2012 (Chapter 242 of the Laws of Kenya), the Cabinet Secretary in charge of health may make rules prohibiting any person from using any building for any purposes whatsoever if such use poses a risk of the spread of any infectious disease or for purposes of prevention, control or suppression of an infectious diseases.

As at today, we are not aware of any such rules having been made in relation to COVID-19.

Malawi - Savjani & Co.

Under section 36 of the Public Health Act, 1948, the Minister  in charge of health may, where there is or threatens to be an outbreak of a disease declared by his notice to be a formidable epidemic or endemic disease, requisition any building urgently required in connexion with the outbreak. In our view, a building may be requisitioned for closure in order to prevent, control or suppress the spread of an infectious disease accordingly declared by notice.

We are not aware of such a Ministerial notice having been made in relation to COVID-19.

Mauritius - BLC Robert & Associates

Yes. The Public Health Act contains provisions for the closure of building which is unfit for human habitation.  The Permanent Secretary of the Ministry of Health may, with the approval of the Minister order the destruction, evacuation, burning or disinfection  of any building which he believes to be infected.

Under regulation 16 of the Prevention and Mitigation of Infectious Disease (Coronavirus) Regulations 2020, where it appears to the Minister of Health that premises are being used for any purpose or in any manner which may lead to the spread of COVID-19, the Minister may,  order that the premises be closed or remain closed or not to admit customers.

Morocco - BFR & Associés

There are no provisions that expressly authorize the government to order the closure of the whole or a part of a building. However, the government has declared a state of health emergency in Morocco as of March 19, 2020.

During the period of the state of health emergency, the Government will take all appropriate measures to ensure the health security of citizens through decrees, administrative decisions, circulars or official communiqués.

Thus, the Cabinet Secretary in charge of health may make rules prohibiting any person from using any building for any purposes whatsoever if such use poses a risk of the spread of any infectious disease or for purposes of prevention, control or suppression of an infectious disease.

Nigeria - G.Elias & Co.

Yes. Pursuant to sections 3 and 8 of the Quarantine Act, CAP Q2 Laws of the Federation of Nigeria, 2004, the President or State Governor may declare any place within Nigeria to be an infected local area.

In addition, regulation 8(1)(c) of the Infectious Diseases (Emergency Prevention) Regulations, 2020 (the Regulations) gives the Governor the power to order the temporary closure of event centres, bars, educational institutions and other public places where gathering of persons occur within the “Local Area”.

Local Area within the context of the Regulations refers to all the 21 local government areas in the Lagos State as well as roads, bridges and pathways surrounding the Murtala Muhammed Airport Complex.

Furthermore, section 21 of the PHL allows the Commissioner for Health to order the evacuation of the infected area.

Rwanda - K. Solutions & Partners

The Government can make rules prohibiting any person from using any building for any purposes whatsoever if such use poses a risk of the spread of any infectious disease or for purposes of prevention, control or suppression of an infectious disease.

As at today, we are not aware of any such rules having been made in relation to COVID-19.

Tanzania - A&K Tanzania

Yes. Under the Public Health Act, where a “nuisance” is proved to exist, the district or urban authority shall issue a closing order prohibiting the use of any premises which is hazardous, injurious or dangerous to human health, until it is satisfied that the building or premise is fit for human habitation. The definition of “nuisance” under the Public Health Act includes anything which is in such a condition, used, disposed of, situated, constructed or unclean as to be dangerous to human life and limb, injurious to human health and likely to give rise to or facilitate the spread of diseases. As at 27 March, we are not aware of the district or urban authorities having ordered the closure of the whole or any part of a building.

Uganda - MMAKS Advocates

Under the Public Health Act and the Public Health (Notifiable Diseases) Rules, the Minister may enforce precautionary measures by statutory instrument ordering the evacuation of the whole or any part of an infected area in respect of a notifiable disease which is infectious.

As at 26 March 2020, we are not aware of any such rules having been made in relation to COVID-19 in respect of closure of buildings.

Zambia - Musa Dudhia & Co.

Yes, Under the Public Health (Infected Areas) (Coronavirus Disease) Regulations, 2020 Statutory instrument no. 22 of 2020 an authorised officer may institute measures for preventing or limiting the danger to health which may include closing whole or part of a building. Yes, Uunder the Public Health (Infected Areas) (Coronavirus Disease) Regulations, 2020 Statutory instrument no. 22 of 2020 an authorised officer may institute measures for preventing or limiting the danger to health which may include closing whole or part of a building.

Can a landlord unilaterally decide to close the whole or a part of a building to help stop the spread of the COVID-19 virus?

Algeria - Bourabiat Associés

Subject to the express provisions of the lease and in the absence of a Government directive under Law 18-11, if a landlord unilaterally decided to close the entire or part of a building thereby  affecting the ability of the tenant to use its leased premises, the landlord could potentially be liable for breach of its obligation to provide the tenant with quiet and peaceful possession of the leased premises. In such instances, the tenant would be entitled to exercise the remedies provided under the lease and under the law.

Any such closure, to the extent that it affects the tenant’s use of itsleased premises, should ideally be done in consultation with and with the agreement of the tenant.

Ethiopia - Mesfin Tafesse & Associates

The lessor is not entitled to unilaterally decide to close the building unless the lease states otherwise. This will be a breach of the legal protection provided to the lessee under the law for peaceful enjoyment of the leased premises. However, as per the State of Emergency Regulation No. 03/2020, the government may order any building or property to be closed for the purpose of containing COVID-19.

Malawi - Savjani & Co.

Subject to the express provisions of the lease and in the absence of a Government directive under the Public Health Act, 1948, if a landlord unilaterally decided to close the entire or a part of the building, affecting a tenant’s ability to use the leased premises, the landlord could potentially be liable for the breach of the landlord’s obligation to allow the tenant quiet and peaceful possession of the leased premises. In such instances the tenant would be entitled to exercise the remedies provided under the lease and under law.

Any such closure  affecting  a tenant’s use of the leased premises should ideally be done in consultation with and with the agreement of the tenant.

Mauritius - BLC Robert & Associates

Subject to the express provisions of the lease and in the absence of a Government directive under the Prevention and Mitigation of Infectious Disease (Coronavirus) Regulations 2020, if a landlord unilaterally decided to close the entire or a part of the building that affects the ability of the tenant to use the leased premises, the landlord could be liable for breach his obligation to allow the tenant quiet and peaceful possession of the leased premises.

In such instances the tenant would be entitled to exercise the remedies provided under the lease and the law.

Any such closure, to the extent that it affects the tenant’s use of the leased premises, should be done in consultation with and with the agreement of the tenant.

Morocco - BFR & Associés

Subject to the express provisions of the lease, if a landlord unilaterally decided to close the entire or a part of the building that affects the ability of the tenant to use the leased premises, the landlord could potentially be liable for the breach of the landlord’s obligation to allow the tenant quiet and peaceful possession of the leased premises. This is according to Article 9 of Law No 67-12 relating to the organization of contractual relationships between landlords and tenants of premises for residential or professional use.

With regard to a commercial lease, reference should be made to the Article 643 of Moroccan Code of Obligations and Contract (which provided the obligation of the landlord to guarantee the enjoyment and quiet possession of the premise) and the express provisions of the lease. In such instances the tenant would be entitled to exercise the remedies provided under the lease and under the law.

Any such closure to the extent that they affect the tenant’s use of the leased premises should ideally be done in consultation with and with the agreement of the tenant.

Nigeria - G.Elias & Co.

Yes, if the part of the building is not leased, the landlord can unilaterally close the unoccupied part of the building.

However, if the part of the building is leased, the landlord cannot unilaterally close that part of the building. This will be a breach of the landlord’s statutory implied covenant of quiet enjoyment as provided under section 8(i) and 9(a) of the Tenancy Law of Lagos State 2011.

Zambia - Musa Dudhia & Co.

In the absence of any government directive if a landlord unilaterally decided to close the entire or a part of the building that affects the ability of the tenant to use the leased premises, the landlord could potentially be liable for the breach of the landlord’s obligation to allow the tenant quiet and peaceful possession of the leased premises. In such instances the tenant would be entitled to exercise the remedies provided under the lease and under the law. Any such closure to the extent that it affects the tenant’s use of the leased premises should ideally be done in consultation with and with the agreement of the tenant.

General

Subject to the express provisions of the lease and in the absence of a Government directive under the Public Health Act, if a landlord unilaterally decided to close the entire or a part of the building that affects the ability of the tenant to use the leased premises, the landlord could potentially be liable for the breach of the landlord’s obligation to allow the tenant quiet and peaceful possession of the leased premises. In such instances the tenant would be entitled to exercise the remedies provided under the lease and under the law.

Any such closure to the extent that it affects the tenant’s use of the leased premises should ideally be done in consultation with and with the agreement of the tenant.

UAE - Anjarwalla Collins & Haidermota

Subject to the express provisions of the lease and in the absence of a Government-mandated closure of premises, if a landlord unilaterally decided to close the entire building or a part of it such that it affected the ability of the tenant to use the leased premises, the landlord could potentially be liable for the breach of the landlord’s obligation to allow the tenant quiet and peaceful possession of the leased premises. In such instances the tenant would be entitled to exercise the remedies provided under the lease and under relevant laws.

Any such closure to the extent that it affects the tenant’s use of the leased premises should ideally be done in consultation with and with the agreement of the tenant. Further, in the event a landlord subsequently claims rental payment from the tenant, the tenant may be able to claim non-performance of contractual obligations of the landlord in respect of the lease and thereby enforce a right to reprieve from any payment of rent for any period that the tenant has not had access to the leased premises.

Nonetheless, in the event that a landlord owns the entire residential building, a landlord may be able to restrict visitors and non-residents from entering the premises for non-essential reasons and tenants may not be able to challenge such a decision.

Can a tenant unilaterally decide to shut its premises to help stop the spread of the Covid-19 virus?

Algeria - Bourabiat Associés

Whether a tenant can close its premises for business in the absence of the Government directive under Law 18-11 or suspend payment of sums due under a lease will depend on the provisions of the lease.

In some leases, the tenant may be entitled to stop trading and close the leased premises so long as the tenant continues to pay rent. In leases, particularly for malls, that have "no ceasing of trade" and “minimum operation hours,” which are intended to maintain synergies across various parts of the malls, a unilateral closure of the leased premises by the tenant could potentially be in breach of these provisions and entitle the landlord to remedies under the lease and in law.

Ethiopia - Mesfin Tafesse & Associates

Typically, the main obligations of the lessee under a lease agreement are payment of the rent and use of the leased premises with all the necessary care as well as the use of the premises for its intended purpose. The lessee may shut the leased premises due to the spread of COVID-19 so long as it is complying with all its obligations under the contract or the SOE Regulation.

Malawi - Savjani & Co.

Whether a tenant can close its premises for business in the absence of a Government directive or suspend payment of sums due under a lease will depend on the provisions of the lease.

In some leases, the tenant may be entitled to stop trading and close the leased premises so long as the tenant continues to pay rent. In leases, particularly for malls, that have "no ceasing of trade" and “minimum operational hours” clauses intended to maintain synergies across various parts of the malls, a unilateral closure of the leased premises by the tenant could potentially be in breach of these provisions and entitle the landlord to remedies under the lease and in law.

Mauritius - BLC Robert & Associates

Under the prevailing curfew order and complete lockdown, buildings are mandatorily closed by law. Once the lockdown is lifted, and providing that the lease does not stipulate otherwise and the tenant continues to pay the rent due, the tenant could unilaterally shut its leased premises.

Morocco - BFR & Associés

Whether a tenant can close its premises in the absence of the government directive or suspend payment of sums due under a lease will depend on the provisions of their lease.

In some leases, the tenant may be entitled to stop trading and close the leased premises. However, depending on the contract provisions and on the outcome of possible negotiations, the tenant would probably have to continue to pay rent.

Nigeria - G.Elias & Co.

The tenant enjoys the right of exclusive possession during the lease term unless they had agreed otherwise with the landlord.

By virtue of this right, the tenant may decide to shut the premises to the exclusion of others, including the landlord. However, a tenant is required by Section 7(4) Tenancy Law of Lagos State 2011 to permit the landlord to view the condition of the premises at all reasonable times during the day after receiving written notice by the landlord.

Rwanda - K. Solutions & Partners

Whether a tenant can close its premises for business in the absence of the Government directive or suspend payment of sums due under a lease will depend on the provisions of the lease.

In some leases, the tenant may be entitled to stop trading and close the leased premises so long as the tenant continues to pay rent. In leases, particularly for malls, that have "no ceasing of trade" and “minimum operation hours,” which are intended to maintain synergies across various parts of the malls, a unilateral closure of the leased premises by the tenant could potentially be in breach of these provisions and entitle the landlord to remedies under the lease and in law.

Zambia - Musa Dudhia & Co.

This will depend on the provisions of the lease. If the lease does not prohibit the tenant from doing so the tenant can unilaterally close its premises. This will however not affect the tenant’s obligation to continue paying rent. In some leases, the tenant may be entitled to stop trading and close the leased premises so long as the tenant continues to pay rent. In leases, particularly for malls, that have ""no ceasing of trade"" and “minimum operation hours,” which are intended to maintain synergies across various parts of the malls, a unilateral closure of the leased premises by the tenant could potentially be in breach of these provisions and entitle the landlord to remedies under the lease and in law.

General

Whether a tenant can close its premises for business in the absence of the Government directive under the Public Health Act or suspend payment of sums due under a lease will depend on the provisions of the lease.

In some leases, the tenant may be entitled to stop trading and close the leased premises so long as the tenant continues to pay rent. In leases, particularly for malls, that have "no ceasing of trade" and “minimum operation hours,” which are intended to maintain synergies across various parts of the malls, a unilateral closure of the leased premises by the tenant could potentially be in breach of these provisions and entitle the landlord to remedies under the lease and in law.

UAE - Anjarwalla Collins & Haidermota

Whether a tenant can close its premises for business in the absence of a Government directive or suspend payment of sums due under a lease will depend on the provisions of the lease.

In some leases, the tenant may be entitled to stop trading and close the leased premises so long as the tenant continues to pay rent. In the absence of such a provision, if a tenant elects to shut its premises on its own accord, the landlord will be entitled to claim rent. To this end, a tenant may not be able to use force majeure as a defense to the claim for rent, unless the tenant can prove, applying an objective test to the circumstances, that a reasonable person would have made such a decision due to the threat or risk of contamination of COVID-19 to the tenant or its employees.

In instances where a landlord has a potential claim for turnover rent, and the tenant does not conduct business in accordance with the provisions of the lease, such as being open for certain hours, the landlord could have a potential claim for damages to the extent of the landlord’s lost income based on the reasonably anticipated turnover with reference to the tenant’s prior turnover records.

What is the effect on co-tenancy clauses where the Government directs the closure of the whole or part of a building or where the other tenants in the building unilaterally decide to close their leased premises and cease trade?

Ethiopia - Mesfin Tafesse & Associates

Co-tenancy clauses are provisions in a lease that require the landlord to maintain a minimum building occupancy. The effect on the co-tenancy clause would depend on:

  1. What is construed as occupancy;
  2. Whether the minimum occupancy is affected by a partial closure; and
  3. Whether force majeure could be applied to the scenario at hand.

The minimum occupancy required on the leased premises is subject to the agreement of the parties on the lease contract. If the closure of the whole or part of the building affects the co-tenancy obligation under the contract, the effects of these will be regulated under the contract and force majeure clauses under the law as discussed in previous sections.

Mauritius - BLC Robert & Associates

Under the prevailing curfew order and complete lockdown, buildings are mandatorily closed by law. Once the lockdown is lifted the position would depend on the co-tenancy provisions in the lease agreements.

Nigeria - G.Elias & Co.

Co-tenancy clauses are rarely used in Nigeria, thus such a situation is unlikely to arise.

General

Co-tenancy clauses are provisions in a lease that require the landlord to maintain a minimum building occupancy. The effect on the co-tenancy clause would depend on:

  1. What is construed as occupancy;
  2. Whether the minimum occupancy is affected by a partial closure;
  3. Whether force majeure or the doctrine of frustration could be applied to the scenario at hand.

Can a tenant suspend the payment of rent claiming that the COVID-19 gives rise to a force majeure event?

Algeria - Bourabiat Associés

The term “force majeure” does not have a recognized meaning under Algerian law. However, the Algerian Civil Code provides that “the obligation is extinguished when the debtor establishes that the performance of the obligation became impossible due to an event that is not under its control”.

The ability to claim that COVID-19 is a force majeure event would depend on the Court’s interpretation, the wording of the force majeure clause (if provided) and the period of suspension of rent payments. The closure of the leased premises would depend on what the lease provides should happen in a force majeure event (if provided).

The effect of a force majeure event on the lease depends on what the parties provided in the lease and/or the interpretation of the Court. The lease may provide for suspension or termination of the lease after an agreed period of suspension.

Ethiopia - Mesfin Tafesse & Associates

Yes, on the condition that the lessee can prove whether COVID-19 amounts to a force majeure event. In order to claim force majeure, force majeure must be specifically provided for in the lease agreement. In principle, contractual parties are free to determine the terms and conditions of contract including events that would constitute force majeure.  If the lease agreement is silent, the provision of the Civil Code defining force majeure will apply as follows:

  1. An occurrence of an event which the debtor could not normally foresee.
  2. The event should render the performance of the contract absolutely impossible. 
  3. Its occurrence must be beyond the control of the party concerned. The event must be external and should not be within the control of the debtor.

Thus, for force majeure to apply, the performance of a contract by the debtor should be absolutely impossible.  The lessee may suspend payment if the spread of COVID-19 renders the payment obligation of the lessee impossible, in which case the lessee has the burden to prove the same.

Kenya - Anjarwalla & Khanna

In order to claim force majeure, force majeure must be specifically provided for in the lease. Force majeure cannot be implied in a contract under Kenyan law. The ability to claim that COVID-19 is a force majeure event would depend on the wording of the force majeure clause and the period of suspension of rent and the closure of the leased premises would depend on what the lease provides should happen in a force majeure event.

The effect of a force majeure event on the lease depends on what the parties provided in the lease. The lease may provide for suspension, or termination, or termination after an agreed period of suspension.

Where the lease is silent on force majeure, neither party to the lease can claim it.

Malawi - Savjani & Co.

Force majeure must be specifically provided for in the lease in order for a tenant to claim a force majeure event has arisen. Force majeure cannot be implied in a contract under Malawi law. The ability to claim that COVID-19 is a force majeure event would depend on the wording of the force majeure clause and the period of suspension of rent and the closure of the leased premises would depend on what the lease provides should happen in a force majeure event.

The effect of a force majeure event on the lease depends on what the parties provided in the lease. The lease may provide for suspension, or termination, or termination after an agreed period of suspension.

Where the lease is silent on force majeure, neither party to the lease can rely on force majeure as a basis for non-performance of their respective obligations under the lease .

Mauritius - BLC Robert & Associates

If the lease provides for suspension of payments, for example, as a result of a curfew or lockdown ordered by Government  the tenant may be able to invoke the relevant clause.

In the absence of such a clause, the tenant may be able to rely on force majeure as a concept under the Civil Code but would have to prove that the curfew/lockdown is something that was unforeseeable and irresistible and has prevented it from paying the rent. It may be difficult to establish that in respect of a payment obligation however.

Morocco - BFR & Associés

Force majeure is provided for in Article 269 of the Moroccan Code of Obligations and Contracts. 

In accordance with the legal definition, a force majeure event will typically excuse a party from performance of a contract when the following characteristics are met:

  • Unpredictable: the event must have been reasonably unpredictable when the contract was concluded .;
  • External: the appearance of the event must be beyond the reasonable control of the party concerned; and
  • Irresistible/ insurmountable: the event cannot be avoided, even in the case where the debtor has deployed all the necessary diligence to guard against it. The event must make the performance of the contract impossible and not just more expensive or complicated.

The determination as to whether a force majeure event has occurred remains subject to the sovereign judgment of the Moroccan courts.

Pursuant thereto, the first issue to consider is whether COVID-19 is covered by the definition of force majeure in the relevant contract.

The effect of a force majeure event on the lease depends. It could be and if whether the lease provides for suspension or termination, or termination after an agreed period of suspension.

It is important to note that the recent measures taken by the Moroccan government in its decree-law, in particular to halt all non-essential commercial activities will prevent a large number of traders from earning a living. 

The Moroccan Government has not taken any measures to provide a mechanism to neutralize sanctions in the event of non-payment of rent for commercial premises for the benefit of certain small businesses. The landlord will not be able to claim, in respect of non-payment of rents, the condemnation of their tenants: whether it is financial penalties, interest on late payment or damages, the implementation of a termination clause, a penal clause or any clause providing for forfeiture, or the activation of guarantees.

Nigeria - G.Elias & Co.

In the absence of a force majeure clause which covers inability to perform by reason of the current pandemic, the tenant cannot suspend the payment of rent on the basis of COVID-19.

Rwanda - K. Solutions & Partners

In order to claim force majeure, force majeure must be specifically provided for in the lease. Force majeure cannot be implied in a contract under Rwandan law. The ability to claim that COVID-19 is a force majeure event would depend on the wording of the force majeure clause and the period of suspension of rent and the closure of the leased premises would depend on what the lease provides should happen in a force majeure event.

The effect of a force majeure event on the lease depends on what the parties provided in the lease. The lease may provide for suspension, or termination, or termination after an agreed period of suspension.

Where the lease is silent on force majeure, However, the tenant can rely on the provisions of article 92 of the Contract Law (relating to Extinguishing of obligations due to impossibility of performance.)

Please refer to our note on Force Majeure.

Tanzania - A&K Tanzania

One of the tenant’s covenants under the Land Act is to pay the rent reserved by the lease at the times and in the manner specified in the lease agreement. In order to claim force majeure, force majeure must be specifically provided for in the lease.

Force majeure cannot be implied in a contract under Tanzanian law. The ability to claim that COVID-19 is a force majeure event would depend on the wording of the force majeure clause and the period of suspension of rent and the closure of the leased premises would depend on what the lease provides should happen in a force majeure event. 

The effect of a force majeure event on the lease depends on what the parties provided in the lease. The lease may provide for suspension, or termination, or termination after an agreed period of suspension.

Where the lease is silent on force majeure, neither party to the lease can claim it.

Please refer to the Corporate FAQs for our note on Force Majeure.

Uganda - MMAKS Advocates

In order to claim force majeure, force majeure must be specifically provided for in the lease. Force majeure cannot be implied in a contract under Ugandan law. The ability to claim that COVID-19 is a force majeure event would depend on the wording of the force majeure clause and the period of suspension of rent and the closure of the leased premises would depend on what the lease provides should happen in a force majeure event.

The effect of a force majeure event on the lease depends on what the parties provided in the lease. The lease may provide for suspension, or termination, or termination after an agreed period of suspension.

Where the lease is silent on force majeure, neither party to the lease can claim it.

Zambia - Musa Dudhia & Co.

The rights and obligations of the parties to a lease will generally depend on the provisions of the lease. The parties should assess whether the COVID-19 pandemic or any measures taken as a result of the pandemic fall within the clause. Such clause may be:

  1. A force majeure clause entitling the parties to suspend or terminate their obligations upon the occurrence of a defined event; or
  2. a rent review clause that either
    1. provides for variation of the rent by reference to the fluctuations of some other rent, cost, price or index or by reference to turnover rents varying in amount in proportion to the sales or production achieved by the tenant in the leased premises; or
    2. permits the tenant to call for the reconsideration and reassessment of the rent. In the absence of a clause in the lease, both the landlord and the tenant have to agree to vary the terms of the tenancy by decreasing or suspending the rent. 

UAE - Anjarwalla Collins & Haidermota

A lease may contain a force majeure clause which permits a party to suspend or terminate the performance of its contractual obligations when certain circumstances, beyond its reasonable control arise, often making the performance of such obligations impossible, illegal or in some instances commercially impracticable. Where a contractual force majeure clause exists in a lease, the parties will need to look at the precise wording of the clause to understand whether COVID-19 will fall within such a definition and, in particular, whether the scope of such a provision would operate to excuse non-payment of rent (which is otherwise usually excluded from a contractual force majeure provision).

In the absence of an express contractual force majeure clause, the tenant may be faced with considering the statutory provisions that can be relied on. The UAE Civil Code contains various provisions which deal with force majeure and unforeseen events, and will supplement any contractual provisions that may have been agreed by the parties.

For example, Article 275 of the UAE Civil Code allows for the termination of a contract upon the occurrence of a force majeure event. Whilst there is no definition of what constitutes 'force majeure' under the law, it is generally accepted in the UAE to be limited to events that are unforeseeable and unavoidable, notably natural disasters such as earthquakes and floods, and possibly also wars and civil unrest, depending on the circumstances.

Moreover, Article 249 of the UAE Civil Code allows a party to a contract to argue oppressive performance which, if successful, grants the courts the discretion to "re-balance" the contractual obligations between the parties. In order to enforce this provision, a tenant would need to clearly demonstrate that the current impact of COVID-19 was unforeseen, falls outside its control and the economics of the current events are oppressive to the extent that the contract should be “re-balanced”. It should be noted however that the UAE courts take a cautious approach to intervening in a contract in this way.

What happens if there is failure to provide building services, including maintenance, cleaning, sanitation, and security due to COVID-19?

Algeria - Bourabiat Associés

Responsibility for the provision of services for a multi-tenant building, including maintenance, cleaning, sanitation and security for the common areas are normally set out in the lease.

Landlords can exclude their liability for failure to provide services where the cessation of the services is due to factors out of the control of the landlord or due to no fault on the part of the landlord. This is recognised on the basis that the landlord is not personally providing the services and that the landlord has no direct control over the third party service vendors.

Practically, however, the landlord would take all reasonable steps necessary to restore the relevant services to the extent practicable as it is not in the best interest of the landlord to let its entire building deteriorate. This is because the landlord’s interest in the entire building is much greater than any one individual tenant’s interest in a portion of the building.

Ethiopia - Mesfin Tafesse & Associates

This will depend on what is contractually agreed between the parties. Responsibility for the provision of services for a multi-tenant building, including maintenance, cleaning, sanitation and security for the common areas are normally set out in the lease agreement. It is common market practice in Ethiopia for lessor to exclude liability for failure to provide services where the cessation of the services is due to factors out of the control of the lessor or due to no fault on the part of the lessor. This is recognised on the basis that the lessor is not personally providing the services and that the lessor has no direct control over the third-party service providers.

Kenya - Anjarwalla & Khanna

Responsibility for the provision of services for a multi-tenant building, including maintenance, cleaning, sanitation and security for the common areas are normally set out in the lease.

It is common market practice in Kenya for landlords to exclude liability for failure to provide services where the cessation of the services is due to factors out of the control of the landlord or due to no fault on the part of the landlord. This is recognised on the basis that the landlord is not personally providing the services and that the landlord has no direct control over the third party service vendors.

Practically, however, the landlord would take all reasonable steps necessary to restore the relevant services to the extent practicable as it is not in the best interest of the landlord to let its entire building deteriorate. This is because the landlord’s interest in the entire building is much greater than any one individual tenant’s interest in a portion of the building.

Malawi - Savjani & Co.

Responsibility for the provision of services for a multi-tenant building, including maintenance, cleaning, sanitation and security for the common areas are normally set out in the lease.

Practically, however, the landlord would take all reasonable steps necessary to restore the relevant services to the extent practicable as it is not in the best interest of the landlord to let its entire building deteriorate. This is because the landlord’s interest in the entire building is much greater than any one individual tenant’s interest in a portion of the building.

Mauritius - BLC Robert & Associates

Responsibility for the provision of services for a multi-tenant building, including maintenance, cleaning, sanitation and security for the common areas are normally set out in the lease.

Landlords may, in the lease agreement, exclude liability for failure to provide services where the cessation of the services is due to factors out of the control of the landlord or due to no fault on the part of the landlord. This is recognised on the basis that the landlord is not personally providing the services and that the landlord has no direct control over the third party service vendors.

Practically, however, the landlord should take all reasonable steps necessary to restore the relevant services to the extent practicable not least as it would not be in the interest of the landlord to let its entire building deteriorate.

Morocco - BFR & Associés

Responsibility for the provision of services for a multi-tenant building, including maintenance, cleaning, sanitation and security for the common areas are normally set out in the lease.

It is common market practice in Morocco for landlords to exclude liability for failure to provide services where the cessation of the services is due to factors out of the control of the landlord or due to no fault on the part of the landlord. This is recognized on the basis that the landlord is not personally providing the services and that the landlord has no direct control over the third-party service vendors.

Practically, however, the landlord would take all reasonable steps necessary to restore the relevant services to the extent practicable, as it is not in the best interest of the landlord to let its entire building deteriorate. This is because the landlord’s interest in the entire building is much greater than any one individual tenant’s interest in a portion of the building.

Nigeria - G.Elias & Co.

As per section 8(vi) of the Tenancy Law of Lagos State, 2011, the landlord has the duty to effect repairs and maintain the external and common parts of the premises, subject to the provisions of the lease agreement.

If the lease agreement provides for a force majeure clause which covers inability to perform by reason of COVID-19, the landlord may rely on the same to avoid liability.

Rwanda - K. Solutions & Partners

Responsibility for the provision of services for a multi-tenant building, including maintenance, cleaning, sanitation and security for the common areas is normally set out in the lease.

It is common market practice in Rwanda for landlords to exclude liability for failure to provide services where the cessation of the services is due to factors out of the control of the landlord or due to no fault on the part of the landlord. This is recognised on the basis that the landlord is not personally providing the services and that the landlord has no direct control over the third party service vendors.

Practically, however, the landlord would take all reasonable steps necessary to restore the relevant services to the extent practicable as it is not in the best interest of the landlord to let its entire building deteriorate. This is because the landlord’s interest in the entire building is much greater than any one individual tenant’s interest in a portion of the building.

Tanzania - A&K Tanzania

Responsibility for the provision of services for a multi-tenant building, including maintenance, cleaning, sanitation and security for the common areas are normally set out in the lease.

It is common market practice in Tanzania for landlords to exclude liability for failure to provide services where the cessation of the services is due to factors out of the control of the landlord or due to no fault on the part of the landlord. This is recognised on the basis that the landlord is not personally providing the services and that the landlord has no direct control over the third party service vendors.

Practically, however, the landlord would take all reasonable steps necessary to restore the relevant services to the extent practicable as it is not in the best interest of the landlord to let its entire building deteriorate. This is because the landlord’s interest in the entire building is much greater than any one individual tenant’s interest in a portion of the building.

Uganda - MMAKS Advocates

Responsibility for the provision of services for a multi-tenant building, including maintenance, cleaning, sanitation and security for the common areas are normally set out in the lease.

It is common market practice in Uganda for landlords to exclude liability for failure to provide services where the cessation of the services is due to factors out of the control of the landlord or due to no fault on the part of the landlord. This is recognised on the basis that the landlord is not personally providing the services and that the landlord has no direct control over the third party service vendors.

Practically, however, the landlord would take all reasonable steps necessary to restore the relevant services to the extent practicable as it is not in the best interest of the landlord to let its entire building deteriorate. This is because the landlord’s interest in the entire building is much greater than any one individual tenant’s interest in a portion of the building.

Zambia - Musa Dudhia & Co.

Responsibility for the provision of services for a multi-tenant building, including maintenance, cleaning, sanitation and security for the common areas are normally set out in the lease. It is common market practice in Zambia for landlords to exclude liability for failure to provide services where the cessation of the services is due to factors out of the control of the landlord or due to no fault on the part of the landlord.

This is recognised on the basis that the landlord is not personally providing the services and that the landlord has no direct control over the third party service vendors. Practically, however, the landlord would take all reasonable steps necessary to restore the relevant services to the extent practicable as it is not in the best interest of the landlord to let its entire building deteriorate. This is because the landlord’s interest in the entire building is much greater than any one individual tenant’s interest in a portion of the building. "

UAE - Anjarwalla Collins & Haidermota

The provision of services for a multi-tenant building, including maintenance, cleaning, sanitation and security for the common areas are normally the responsibility of the landlord. Under the UAE Civil Code, a landlord is responsible for all maintenance works and repairs of any defects, damage, deficiency or wear and tear, which may affect the tenant’s intended use of the premises.

Practically, the landlord would take all reasonable steps necessary to restore the relevant services to the extent practicable as it is not in the best interest of the landlord to let its entire building deteriorate. A landlord’s interest in the entire building is much greater than any one individual tenant’s interest in a portion of the building.

If an individual tenant or an employee of the tenant contracts Covid-19, can a landlord prohibit the tenant or its employee from accessing the building/premises?

Algeria - Bourabiat Associés

Both the tenant and the landlord have an obligation to ensure the health and welfare of the tenants and itsemployees under Law 88-07 and the visitors who are lawfully at the premises/building under the Algerian Civil Code. This obligation extends to taking all reasonable steps to avoid the spread of the infection to other employees or visitors in line with the provisions of Law 88-07, Law 18-11, the Algerian Civil Code and the lease itself.

Ethiopia - Mesfin Tafesse & Associates

Yes, however, the landlord must notify the Ministry of Health or the police immediately as per the State of Emergency Regulation No. 03/2020. The tenant/employee has the obligation to cooperate with medical treatment, including being quarantined. The government has issued guidelines on how a person who contracts COVID-19 is to be treated until recovery, including the requirement to isolate oneself. Therefore, a person who contracted COVID-19 is not allowed to access the leased premises in accordance with the emergency health protocol announced by the government.

Kenya - Anjarwalla & Khanna

Both the tenant and the landlord have an obligation under the Occupation Safety and Health Act (No. 15 of 2007) (OSHA) to ensure the health and welfare of the employees and the visitors who are lawfully at the premises and the building. This obligation extends to taking all reasonable steps to avoid the spread of the infection to other employees or visitors in line with the provisions of OSHA, the Public Health Act and the lease itself.

Malawi - Savjani & Co.

Under the OSHWA, the employer bears the obligation to ensure the health and welfare of the employees and by reasonable extension, the visitors who are lawfully at the premises and the building. This obligation extends to taking all reasonable steps to avoid the spread of the infection to other employees or visitors in line with the provisions of OSHWA, the Public Health Act and the lease itself. The landlord does not have such duties. However, he may report a tenant to the Director of Occupational Safety, Health and Welfare if he is aware that the tenant or his employees have contracted COVID-19 and are still coming to the premises and are not observing the protocol put in place by Government and the WHO.

Mauritius - BLC Robert & Associates

No, the landlord would have no such power or entitlement to prohibit such access. It would be up to the tenant or employer, to take steps to protect the health of its employees and third parties under section 5 of the Occupational Safety and Health Act.

Morocco - BFR & Associés

Whether a landlord can prohibit the tenant or its employee from accessing the building / premises will depend on the health and safety provisions contained in the lease and under the Moroccan Code of Obligations and Contracts.

As mentioned above, the landlord must maintain the premises in such way as to permit their use in accordance with the provisions of the contract and to carry out all necessary repairs for its preservation and maintenance.

In addition, under Article 749 of the Moroccan Code of Obligations and Contracts, an employer is obliged in particular to ensure that the premises have all the necessary conditions of health and safety and must also take all necessary precautionary measures to guarantee the life and health of his workers, service workers or employees, in the performance of the work which they perform under his direction or on his behalf.

Nigeria - G.Elias & Co.

Section 8(i) of the Tenancy Law of Lagos State, 2011 prohibits a landlord from interfering with the tenant’s quiet and peaceable enjoyment of the premises.

Furthermore, section 9 of the Tenancy Law of Lagos State 2011 provides that if a landlord prevents the tenant from accessing the premises, the landlord is liable to pay to the tenant such compensation as shall be determined by the court.

Therefore, in order to prevent liability, the landlord would have recourse to the relevant provisions of the Public Health Law of Lagos State which mandates an owner of a property to bring to the attention of a government medical officer of health any occupant of property suspected to be suffering from an infectious disease.

Rwanda - K. Solutions & Partners

Both the tenant and the landlord have an obligation under the Government guidelines to ensure the health and welfare of the employees and the visitors who are lawfully at the premises and the building. They have the obligation to take all reasonable steps to avoid the spread of the infection to other employees or visitors in line with the guidelines set by the Government.

Tanzania - A&K Tanzania

Yes. Both the tenant and the landlord have an obligation under the Occupational Health and Safety Act (No. 5 of 2003) (OSHA) to ensure the health and welfare of the employees and the visitors who are lawfully at the premises and the building. This obligation extends to taking all reasonable steps to avoid the spread of the infection to other employees or visitors in line with the provisions of OSHA, the Public Health Act and the lease itself. Accordingly, such steps may reasonably include prohibiting access to the building/premises.

Uganda - MMAKS Advocates

Under the Public Health Act, a landlord may be held liable for knowingly letting a dwelling or premises which any person that has been suffering an infectious disease has occupied without having it disinfected to the satisfaction of the medical officer of health. A landlord may therefore seek to avoid liability by ensuring infected persons are not given access to a building to avoid the risk of contamination of the building/premises.

Zambia - Musa Dudhia & Co.

A landlord cannot prohibit the tenant or its employee from accessing the building as the lease agreement gives the tenant exclusive possession. However, the landlord may bring the situation to the attention of the Ministry of Health who may take measures to ensure that all potentially affected persons are put in quarantine.

UAE - Anjarwalla Collins & Haidermota

For commercial properties, it is common practice for a single landlord to own/ manage the entire premises. To this end, in the event of a confirmed case of COVID-19, a landlord should inform all tenants and subsequently close and disinfect the entire premises. In such an instance, the tenant would also need to ensure that the visitors and its employees are informed immediately and their identities would have to be further disclosed to the landlord.

For residential properties, in the event of a confirmed case of COVID-19, the landlord should, as a matter of good practice, attempt to inform existing and potential tenants of the residential units of a confirmed case, without disclosing the identity of the individual(s). Due to the premises being used for residential purposes, a landlord is restricted from preventing a tenant’s access or enjoyment to the property. However, a landlord (if he owns the entire residential property) may be able to restrict visitors and non-essential persons from entering the building for non-essential reasons and a tenant may not be able to challenge this decision.

What alternative remedies can I consider if my contract/lease does not entitle me to suspend my obligations on account of force majeure?

Ethiopia - Mesfin Tafesse & Associates

A lessee is liable for any damage caused to the other party for failing to perform the obligations under the contract which is the payment obligations. If the contract does not consider suspension of a payment obligation on account of COVID-19 as a force majeure event, the lessee will have two options to suspend the obligations:

  1. A Government Order: if the Government orders the closure of buildings, the lessee will be entitled to terminate the agreement as the core obligation of the contract of lease is use of the leased premises. 
  2. Amendment to the contract: the parties may reach an agreement to amend contractual terms so as to enable the lessee to cease to perform its payment obligations without any further legal liability until the matter is resolved.

Malawi - Savjani & Co.

The common law doctrine of frustration may apply in this scenario. A contract may be discharged on the ground of frustration when an event occurs after the formation of the contract which either makes it physically or commercially impossible to fulfill, or changes the obligation to perform into a radically different obligation from that undertaken when the contract was formed. In light of the impact COVID-19 has had across the globe, it appears that there is scope for the doctrine of frustration to apply in many cases, depending on the circumstances.

A frustrating event must satisfy the following elements:

  1. it must occur after the contract has been formed;
  2. it must be so fundamental as to be legally regarded both as striking at the root of the contract and as entirely beyond what was contemplated by the parties when they entered the contract;
  3. it must not be due to the fault of either party; and
  4. it must render further performance impossible, illegal or make it radically different from that contemplated by the parties when they entered the contract.

An express provision in a contract is not necessary in order for the doctrine of frustration to apply. In fact, express provisions such as force majeure clauses will normally prevent the contract from being frustrated. However, a contract will not be frustrated simply because it becomes more difficult or more expensive to perform or because a party has been let down by one of its suppliers.

When a frustrating event occurs, the parties are excused from further performance of their contractual obligations and are not liable for damages for non-performance. However, the contract will be permanently frustrated – unlike force majeure claims, frustration claims cannot be suspensory.

Part VIII of Malawi’s Statute Law (Miscellaneous Provisions) Act, 1967 (Cap. 5:01 of the Laws of Malawi) governs certain consequences of frustration. Except where otherwise agreed by the parties, the Act permits recovery of monies that were paid under the contract before it was discharged, subject to an allowance (at the court’s discretion) for expenses incurred by the other party.

In  certain situations, including contracts for carriage of goods by sea, insurance contracts, or contracts for sale of perishable goods recovery of monies paid under a frustrated contract is not allowed or is restricted depending on the situation.

Mauritius - BLC Robert & Associates

Force majeure as a civil law concept, namely an event which is unforeseeable and irresistible and that prevents performance of contractual obligations during the period while the force majeure event is ongoing, would be available. However the tenant would have to prove that the factors leading to the suspension were unforeseeable and irresistible and forced it to cease operations.

Nigeria - G.Elias & Co.

In the event COVID-19 is not captured under the force majeure clause or any other clause so as to effectively suspend or terminate obligations, the tenant should then engage in discussions with the landlord with a view to varying he terms of the lease to suspend the obligations they are concerned about. Where such discussions fail, the tenant may seek redress from the court.

Rwanda - K. Solutions & Partners

The provisions of Article 92 of the Contract Law (Extinguishing of obligations due to impossibility of performance) may be applied where the performance of a contract is rendered impossible due to the occurrence of events beyond the control of the parties to the contract, including acts done by persons not party.
However, the burden of proof is up on the party claiming the impossibility of performance. The party claiming impossibility of performance would need to prove that:

  1. the circumstances arise without fault of either party;
  2. the event causing impossibility of performance was unforeseeable; and
  3. the intervening event resulted in something so radically different from that originally contemplated by the parties.

For a contract to qualify under impossibility of performance, the event in question must be fundamental to the terms of the contract, and do more than simply make it less convenient or more expensive to perform the contract.

It should, however, be noted that impossibility of performance if proved leads to an automatic termination of the contract/lease and not a suspension of the obligations as may be possible under force majeure. This may not be the intended or desired result for both parties. In this regard, parties may opt to vary the terms of the contract/lease to accommodate the party affected by the impossibility of performance event.

General

The doctrine of frustration under common law may be applied where the performance of a contract is rendered impossible due to the occurrence of events beyond the control of the parties to the contract, including acts done by persons not party.

The doctrine of frustration however places the onus of proving frustration on the party claiming it. The party claiming frustration would need to prove that:

  1. the frustrating circumstances arise without fault of either party;
  2. the event causing the frustration was unforeseeable; and
  3. the intervening event resulted in something so radically different from that originally contemplated by the parties.

For a contract to have been frustrated, the event in question must be fundamental to the terms of the contract, and do more than simply make it less convenient or more expensive to perform the contract.

It should, however, be noted that frustration if proved leads to an automatic termination of the contract/lease and not a suspension of the obligations as may be possible under force majeure. This may not be the intended or desired result for both parties. In this regard, parties may opt to vary the terms of the contract/lease to accommodate the party affected by the frustrating event.

UAE - Anjarwalla Collins & Haidermota

As stipulated under Question 4 of this section, in the absence of an express contractual force majeure clause, the tenant may be faced with considering the statutory provisions that can be relied on. The UAE Civil Code contains various provisions which deal with force majeure and unforeseen events and will supplement any contractual provisions that may have been agreed by the parties. These include Articles 249 and 275 of the UAE Civil Code.

Furthermore, Article 782 of the UAE Civil Code provides that in circumstances where it becomes impossible for a tenant to have full or partial enjoyment of the leased property due to an act of the authorities, the lease will be cancelled and the tenant’s obligation to pay rent would cease. The impact of enforcing Article 782 would be the termination of the lease which in turn results in any payment obligations ceasing, and not a temporary suspension of rent. In order to successfully enforce this provision, a tenant would need to prove that it is impossible to enjoy the premises.

What should real estate developers with development loans do in view of the looming slowdown in house purchase uptake?

Kenya - Anjarwalla & Khanna

The Central Bank of Kenya and the President of Kenya have recently requested commercial banks in Kenya to adopt certain measures to afford relief to the borrowers so as to mitigate the adverse effects on borrowers from the Covid-19 pandemic. The developers should (if required) contact their respective banks to assess the current situation and how it has impacted their business and to discuss how to restructure repayment of their loan.

Malawi - Savjani & Co.

The developers should contact their respective banks to assess the current situation and how it has impacted their business and to discuss how to restructure repayment of their loan.

Neither the Reserve Bank of Malawi nor the Government of Malawi has made any announcements in this respect.

Mauritius - BLC Robert & Associates

On 13 March 2020, the Bank of Mauritius announced a series of measures to help alleviate economic operators which may be impacted by COVID-19, namely:

  1. A special facility of Rs 5 billion to be available through commercial banks at interest rate of 2.5% per annum payable over 2 years.  The facility is available between 24 March 2020 and 31 July 2020 and a moratorium of 6 months is available on capital and interest repayments.  Operators can contact their banks to avail themselves of such facility;
  2. Reduction of the cash reserve ratio of commercial banks from 9% to 8%; and
  3. A requirement for commercial banks to provide a six-month moratorium on capital repayments of existing loans of operators impacted by COVID-19.

On 20 March 2020, the Bank of Mauritius announced further measures including:

  1. households affected by COVID-19 may request their commercial banks to provide a 6-month moratorium on capital repayments;
  2. the Bank of Mauritius will bear interest repayments of outstanding household loans from 01 April 2020 to 30 June 2020 for households earning up to Rs 50,000 a month;
  3. the Bank of Mauritius will make a USD 300 million foreign currency line available through commercial banks to operators with foreign currency earnings.  Such a facility will bear interest at USD 6 month LIBOR, will be available between 24 March 2020 and 30 June 2020, and repayment will be over 2 years; and
  4. introduction of a swap arrangement through commercial banks for an initial amount of USD 100 million to assist import-oriented businesses.  The arrangement is available between 24 March 2020 and 30 June 2020.

Morocco - BFR & Associés

The member banks of the professional group of the banks of Morocco have asserted their willingness to support the Moroccan economy and have recently proposed measures to manage the world crisis in the best possible conditions.

In the case of loan carryovers for companies, banks may, on a case by case basis, grant the deferral of the settlement of their medium and long-term loans for 3 months to companies who make such a request.

Developers should contact their banks to assess the current situation and its impact on their business and loan repayments.

Nigeria - G.Elias & Co.

Real estate developers should consider negotiating with lenders for the deferment or waiver of the payment of the principal or interest on a loan. In addition, they could also negotiate the reduction of the interest rate on the loan.

Rwanda - K. Solutions & Partners

The National Bank of Rwanda has recently requested banks in Rwanda to adopt certain measures to afford relief to the borrowers so as to mitigate the adverse effects on borrowers from the Covid-19 pandemic. The developers should (if required) contact their respective banks to assess the current situation and how it has impacted their business and to discuss how to restructure repayment of their loan.

Tanzania - A&K Tanzania

The Bank of Tanzania has not yet issued any measures to afford relief to the estate developers with development loans so as to mitigate the adverse effects on borrowers from the COVID-19 pandemic.

Our recommendation is that the estate developers contact their respective banks to assess the current situation and how it has impacted their business and to discuss how to restructure repayment of their loan, to the extent possible.

Uganda - MMAKS Advocates

The Bank of Uganda on 20 March 2020 issued measures to mitigate the economic impact of COVID-19 to mitigate the adverse effects on borrowers from the COVID-19 pandemic, including a waiver on limitations on restructuring. The developers should (if required) contact their respective banks to assess the current situation and how it has impacted their business and to discuss how to restructure repayment of their loan.

Zambia - Musa Dudhia & Co.

Please refer to our to the note on Banking and Finance.

UAE - Anjarwalla Collins & Haidermota

The Central Bank of the United Arab Emirates (“UAE Central Bank”) and the UAE Government have recently requested commercial banks in the UAE to adopt certain measures to afford relief to borrowers so as to mitigate the adverse effects on borrowers from the COVID-19 pandemic. Developers may (if required) contact their respective banks to assess the current situation, how it has impacted their business and discuss how to restructure the repayment of their loan.

How are payments under the sale agreement affected if the completion date falls during a period when the lands registries are closed?

Algeria - Bourabiat Associés

This will vary from one agreement to another depending on the specific terms of the agreement:

  1. For a cash transaction, a purchaser is normally required to pay the notary public 20% of the purchase price on the signature date in exchange for the release of the completion documents.
  2. In a financed transaction, the purchaser normally pays to the notary public 20% of the purchase price. The vendor would not be entitled to the entire purchase price until one month has elapsed following the payment of 20% of the purchase price.

The closure of the lands registries in both instances has the effect of delaying the stamping and registration of the transfer and the charge (if applicable) and consequently, the transfer of ownership. 

Both the vendor and the purchaser should have a discussion on how to manage each party’s expectations. They should also discuss the timelines for completing the transaction owing to the fact that the closure and re-opening of the land registries is not within the control of either party.

The vendor and purchaser should also review the provisions on time for registration and transfer as would be ordinarily provided for in the sale agreement. A decision can be made as to the amendments of these terms  to allow for additional time for registration and transfer, as may be required.

Ethiopia - Mesfin Tafesse & Associates

This will vary from one agreement to another depending on the specific terms of the agreement. For a cash transaction, a purchaser’s obligation to pay the balance of the purchase price is normally pegged to the completion date in exchange for the release of the completion documents. In some circumstances, parties agree that the entire purchase price or a portion of it can be released to the seller on the completion date upon release of the completion documents to the buyer. In a financed transaction, the buyer normally pays the deposit into an escrow account and on the completion date procures a financial undertaking from its financier to make payment of the balance of the purchase price to the seller.

The seller would not be entitled to the entire purchase price until the transfer and the charge have been registered before the Document Authentication and Registration Authority (DARA).  In such a transaction, the closure of the DARA has the effect of delaying the stamping and registration of the transfer and, consequently, the receipt by the seller of the purchase price and the granting of possession of the property to the buyer. Moreover, in such an instance, both the seller and the buyer should agree on how best to manage each party’s expectations and timelines for completing the transaction as the closure and the reopening of the DARA is not within the control of either party. The provisions of the agreement for sale on time prescribed for registering the transfer should also be reviewed so as to provide for additional time if required.

Malawi - Savjani & Co.

This will vary from one agreement to another depending on the specific terms of the agreement:

  1. For a cash transaction, a purchaser’s obligation to pay the balance of the purchase price is normally pegged to the completion date in exchange for the release of the completion documents. In some circumstances, parties agree that the entire purchase price or a portion of it can be released to the vendor on the completion date upon release of the completion documents to the purchaser. However, it is market practice for the deposit and the balance to be held in escrow pending the registration of the transfer.
  2. In a financed transaction, the purchaser normally pays the deposit into escrow and on the completion date procures a financial undertaking from its financier to make payment of the balance of the purchase price to the vendor on the registration of the transfer in favour of the purchaser and the charge in favour of the purchaser’s financier. The vendor would not be entitled to the entire purchase price until the transfer and the charge have been registered.

The closure of the lands registries in both instances has the effect of delaying the stamping and registration of the transfer and the charge (if applicable) and consequently the receipt by the vendor of the purchase price and the granting of possession of the property to the purchaser. Both the vendor and the purchaser should have a discussion on how best to manage each party’s expectations and timelines for completing the transaction as the closure and the reopening of the lands registries is not in the control of either party.
The provisions of the agreement for sale on time prescribed for registering the transfer should also be reviewed so as to provide for additional time if required.

Mauritius - BLC Robert & Associates

This will depend on the specific terms of the agreement.

The closure of the offices of the Registrar-General and Conservator of Mortgages has the effect of delaying the stamping and registration of the transfer and the charge (if applicable) and consequently the receipt by the vendor of the purchase price and the granting of possession of the property to the purchaser. Both the vendor and the purchaser should have a discussion on how best to manage each party’s expectations and timelines for completing the transaction as the closure and the reopening of the lands registries is not in the control of either party.

The provisions of the agreement for sale on time prescribed for registering the transfer should also be reviewed so as to provide for additional time if required.

Nigeria - G.Elias & Co.

The impact on payment obligations should be minor as most ministries, departments and agencies have centralised electronic payment platforms, especially the Government-backed Remita one which is working, in light of the lockdown.

Where payment is to be made to a private sector counterparty, such payment can be made through online banking.

Where the aforementioned options are not sufficient to fulfil the payment obligations, parties may in writing amend their agreement to reflect an alternative date.

Tanzania - A&K Tanzania

As at 27 March, there are no directives from the Government regarding the closure of the lands registries in Tanzania and business is going on as usual in the respective registries. That being said, parties that are currently entering into transactions or that are planning on entering into transactions in the near future may want to consider building in provisions that extend completion periods in order to factor in potential delays at the registry due to COVID-19.

Zambia - Musa Dudhia & Co.

The Lands and Deeds Registry is still open and parties to a sale agreement are still able to lodge conveyancing documents. The Ministry of Lands has implemented social distancing measures to help curb the spread of CovidCOVID-19. However, should the Lands and Deeds Registry close the Seller may not be able to obtain state consent to assign without which the transaction cannot be completed. Where payment of the purchase price or the balance of the purchase is tied to completion the inability to complete will affect payment under the sale agreement.

General

This will vary from one agreement to another depending on the specific terms of the agreement:

  1. For a cash transaction, a purchaser’s obligation to pay the balance of the purchase price is normally pegged to the completion date in exchange for the release of the completion documents. In some circumstances, parties agree that the entire purchase price or a portion of it can be released to the vendor on the completion date upon release of the completion documents to the purchaser. However, it is market practice for the deposit and the balance to be held in escrow pending the registration of the transfer.
  2. In a financed transaction, the purchaser normally pays the deposit into escrow and on the completion date procures a financial undertaking from its financier to make payment of the balance of the purchase price to the vendor on the registration of the transfer in favour of the purchaser and the charge in favour of the purchaser’s financier. The vendor would not be entitled to the entire purchase price until the transfer and the charge have been registered.

The closure of the lands registries in both instances has the effect of delaying the stamping and registration of the transfer and the charge (if applicable) and consequently the receipt by the vendor of the purchase price and the granting of possession of the property to the purchaser. Both the vendor and the purchaser should have a discussion on how best to manage each party’s expectations and timelines for completing the transaction as the closure and the reopening of the lands registries is not in the control of either party.

The provisions of the agreement for sale on time prescribed for registering the transfer should also be reviewed so as to provide for additional time if required.

How does the current closure of the lands registries and various governmental offices affect completion in various sale and purchase transactions?

Algeria - Bourabiat Associés

The following issues should be considered in relation tothe completion of a transaction involving the sale and purchase of property:

  1. in a financed transaction, the completion period should give sufficient time for the bank to complete its due diligence. Where this has not already been done, the closure of the registries will delay this process and the due diligence can only be completed after the lands registries re-open;
  2. the completion period should also give sufficient time for the vendor to procure the various completion documents including the consent to transfer.This process is also delayed and can only be undertaken once the lands registries and relevant authorities, including the county government offices, are re-opened;
  3. the closure of the lands registries and government offices may also affect the validity of the completion documents that may have already been procured and which mayexpire prior to the re-opening of the lands registries; and
  4. there may also be a delay in the time prescribed for registering the transfer as provided in the sale agreements.

If the agreement for sale has already been executed and the completion date is a date that falls prior to the re-opening of the lands registries and the relevant county government offices, parties would need to consider moving the date forward so as to allow each party to comply with its completion obligations.

Ethiopia - Mesfin Tafesse & Associates

In Ethiopia, there is currently no full lockdown. Government offices are partially operating with a downsized number of civil servants providing services. As there are likely to be delays in processing transactions, the following issues should be considered for completing a property sale transaction:

  1. in a financed transaction involving banks, the completion period should give sufficient time for the bank to complete its due diligence (if this has not already been done):
  2. the completion period should also give sufficient time for the seller to procure the various completion documents, once the DARA and relevant authorities, are fully operational: 
  3.  whether any of the completion documents (including clearance certificates) that may have already been procured would expire prior to government offices being fully operational: and
  4. time prescribed for notarizing the transfer

If the agreement for sale has already been executed and the completion date will occur prior to the reopening of DARA and the relevant county government offices, then parties will need to discuss providing an extension of time to a more realistic date so as to allow each party to comply with its completion obligations.

Malawi - Savjani & Co.

The following issues should be considered when bearing in mind completion for a property sale transaction:

  1. in a financed transaction, the completion period should give sufficient time for the bank to complete its due diligence (if this has not already been done) once the lands registries reopen;
  2. the completion period should also give sufficient time for the vendor to procure the various completion documents, including the rent clearance certificate, consent to transfer, rates clearance certificates once the lands registries and relevant authorities, including the county government offices, reopen;
  3. whether any of the completion documents (including rates clearance certificates) that may have already been procured would expire prior to the re-opening of the lands registries; and
  4. time prescribed for registering the transfer

If the agreement for sale has already been executed and the completion date will occur prior to the reopening of the lands registries and the relevant county government offices, then parties will need to discuss providing an extension of time to a more realistic date so as to allow each party to comply with its completion obligations.

Mauritius - BLC Robert & Associates

If the agreement for sale has been executed and the completion date will occur prior to the reopening of the offices of the Registrar General and Conservator of Mortgages, then the parties should discuss providing an extension of time to a more realistic date so as to allow each party to comply with its completion obligations. The following issues should be considered when bearing in mind completion for a property sale transaction:

  1. in a financed transaction, the completion period should give sufficient time for the bank to complete its due diligence (if this has not already been done) once the lands registries reopen;
  2. the completion period should also give sufficient time for the vendor to procure the various completion documents once the offices of the Registrar-General and Conservator of Mortgages reopen;
  3. whether any of the completion documents that may have already been procured would expire prior to the re-opening of the offices of the Registrar-General and Conservator of Mortgages; and
  4. additional time may be prescribed for registering the transfer.

Nigeria - G.Elias & Co.

Closure of the Lands Registry and various government offices does not technically affect completion of a sale and purchase transaction if we understand completion to occur when payment of the price is made rather than when the change of title is fully perfected.

However, such closure affects post-completion regulatory payments and other obligations as outlined below:

  1. Upon the execution of the agreement at completion, stamping must be done within 40 days.  See section 23(1) of the Stamp Duties Act;
  2. The agreement must be registered at the land’s registry within 60 days from the date of endorsement of the Governor’s consent. See Section 26 of the Land Registration Law of Lagos State, 2015; and
  3. The consent of the Governor must also be obtained. See section 21 and 22 of the Land Use Act, 1978.

As the law stands, the pandemic is not an excuse for failure to comply with these obligations.

Tanzania - A&K Tanzania

As at 27 March, there is no closure of the land registries or governmental offices in Tanzania.

Uganda - MMAKS Advocates

The following issues should be considered when bearing in mind completion for a property sale transaction:

  1. in a financed transaction, the completion period should give sufficient time for the bank to complete its due diligence (if this has not already been done) once the lands registries reopen;
  2. the completion period should also give sufficient time for the vendor to procure the various completion documents, including the rent clearance certificate, consent to transfer, rates clearance certificates once the lands registries and relevant authorities, including the county government offices, reopen;
  3. whether any of the completion documents (including rates clearance certificates) that may have already been procured would expire prior to the re-opening of the lands registries; and
  4. time prescribed for registering the transfer

If the agreement for sale has already been executed and the completion date would likely occur prior to the reopening of the lands registries and the relevant county government offices, then parties will need to discuss providing an extension of time to a more realistic date so as to allow each party to comply with its completion obligations.

Presently, the land registries in Uganda have been guided to reduce to skeletal staff and this is impacting the turnaround time for transactions but they are still capable of being completed.

Zambia - Musa Dudhia & Co.

If the parties are yet to execute a sale and purchase agreement the agreement should be drafted in a such a way as to provide the parties sufficient time within which to obtain the necessary consents and approvals. If the agreement for sale has already been executed and the completion date will occur prior to the reopening of the lands registries parties will need to discuss providing an extension of time to a more realistic date so as to allow each party to comply with its completion obligations.

General

The following issues should be considered when bearing in mind completion for a property sale transaction:

  1. in a financed transaction, the completion period should give sufficient time for the bank to complete its due diligence (if this has not already been done) once the lands registries reopen;
  2. the completion period should also give sufficient time for the vendor to procure the various completion documents, including the rent clearance certificate, consent to transfer, rates clearance certificates once the lands registries and relevant authorities, including the county government offices, reopen;
  3. whether any of the completion documents (including rates clearance certificates) that may have already been procured would expire prior to the re-opening of the lands registries; and
  4. time prescribed for registering the transfer

If the agreement for sale has already been executed and the completion date will occur prior to the reopening of the lands registries and the relevant county government offices, then parties will need to discuss providing an extension of time to a more realistic date so as to allow each party to comply with its completion obligations.

How does closure of registries affect the handover of possession of the property on a sale transaction?

Algeria - Bourabiat Associés

It is market practice for possession of the property to be granted by the vendor to the purchaser on completion of the registration of the transfer and release of the purchase price to the vendor.

As mentioned above, the closure of the lands registries has the impact of delaying stamping and registration formalities on the transfer of ownership.

In the event the purchaser wishes to take possession of the property prior to the registration of the transfer, then this may be made conditional on the release of the purchase price and the purchaser would take the risk on the registration of the transfer.

Ethiopia - Mesfin Tafesse & Associates

Possession of the property is normally granted by the seller to the buyer on completion of the registration of the transfer, if required, and release of the purchase price to the seller. As indicated above, the closure of DARA has the impact of delaying the stamping and registration formalities on the transfer and consequently the release of purchase price to the seller and grant of possession of the property to the buyer.  Should the buyer wish to take possession of the property prior to the registration of the transfer, then, this may be made conditional on the release of the purchase price and the buyer would take the risk on the registration of the transfer.

Alternatively, the buyer may occupy the property prior to the registration of the transfer as a lessee and pay rent to the seller. In this situation, while the seller  enjoys an additional revenue stream (for what is hoped to be a short period), the seller takes on the risk of vacating the buyer if the transaction is not completed due to no fault on the part of the seller.

Malawi - Savjani & Co.

It is market practice for possession of the property to be granted by the vendor to the purchaser on completion of the registration of the transfer and release of the purchase price to the vendor.

As mentioned above, the closure of the lands registries would delay the stamping and registration formalities on the transfer, and consequently the release of purchase price to the vendor and grant of possession of the property to the purchaser.

Should the purchaser wish to take possession of the property prior to the registration of the transfer then this may be made conditional on the release of the purchase price and the purchaser would take the risk on the registration of the transfer.

Alternatively, the purchaser may occupy the property prior to the registration of the transfer as a tenant and pay rent to the vendor. In this situation, while the vendor enjoys an additional revenue stream (for what is hoped to be a short period), the vendor takes on the risk of vacating the purchaser if the transaction is not completed due to no fault on the part of the vendor.

Mauritius - BLC Robert & Associates

It is market practice for possession of the property to be granted by the vendor to the purchaser on completion of the registration of the transfer and release of the purchase price to the vendor.

The closure of the offices of the Registrar General and Conservator of Mortgages will delay the stamping and registration formalities on the transfer and consequently, the release of the purchase price to the vendor and grant of possession of the property to the purchaser.

Should the purchaser wish to take possession of the property prior to the registration of the transfer, then this may be made conditional on the release of the purchase price and the purchaser would take the risk on the registration of the transfer.

Alternatively, the purchaser may occupy the property prior to the registration of the transfer as a tenant and pay rent to the vendor. In this situation, while the vendor enjoys an additional revenue stream (for what is hoped to be a short period), the vendor takes on the risk of vacating the purchaser if the transaction is not completed due to no fault on the part of the vendor.

Nigeria - G.Elias & Co.

In practice, possession, old title documents and registration application papers are transferred to the purchaser as soon as the purchase price is paid and long before the new title is perfected. Thus, the closure of the Lands Registry does not affect the delivery of old title, registration of documents or the transfer of possession. However, the purchaser merely acquires only an equitable interest until the new title document is perfected. Thus, the closure of the Lands Registry would leave a bona fide purchaser of the property with an equitable interest.

Tanzania - A&K Tanzania

As at 27 March, there is no closure of the lands registries or government offices in Tanzania.

Uganda - MMAKS Advocates

As per market practice, possession of the property is normally granted by the vendor to the purchaser on completion of the registration of the transfer and release of the purchase price to the vendor.

As mentioned above, the closure of the lands registries has the impact of delaying the stamping and registration formalities on the transfer and consequently the release of purchase price to the vendor and grant of possession of the property to the purchaser.

Should the purchaser wish to take possession of the property prior to the registration of the transfer then this may be made conditional on the release of the purchase price and the purchaser would take the risk on the registration of the transfer.

Alternatively, the purchaser may occupy the property prior to the registration of the transfer as a tenant and pay rent to the vendor. In this situation, while the vendor enjoys an additional revenue stream (for what is hoped to be a short period), the vendor takes on the risk of vacating the purchaser if the transaction is not completed due to no fault on the part of the vendor.

Presently, the land registries have been guided to reduce to skeletal staff and this is impacting the turnaround time for transactions but they are still capable of being completed.

Zambia - Musa Dudhia & Co.

It is market practice for possession of the property to be granted by the vendor to the purchaser on completion of the registration of the transfer and release of the purchase price to the vendor.
The closure of the lands registries has the impact of delaying the stamping and registration formalities on the transfer and consequently the release of purchase price to the vendor and grant of possession of the property to the purchaser.

Should the purchaser wish to take possession of the property prior to the registration of the transfer then this may be made conditional on the release of the purchase price and the purchaser would take the risk on the registration of the transfer.

Alternatively, the purchaser may occupy the property prior to the registration of the transfer as a tenant and pay rent to the vendor. In this situation, while the vendor enjoys an additional revenue stream (for what is hoped to be a short period), the vendor takes on the risk of vacating the purchaser if the transaction is not completed due to no fault on the part of the vendor.

General

It is market practice for possession of the property to be granted by the vendor to the purchaser on completion of the registration of the transfer and release of the purchase price to the vendor. 

As mentioned above, the closure of the lands registries has the impact of delaying the stamping and registration formalities on the transfer and consequently the release of purchase price to the vendor and grant of possession of the property to the purchaser.

Should the purchaser wish to take possession of the property prior to the registration of the transfer then this may be made conditional on the release of the purchase price and the purchaser would take the risk on the registration of the transfer.

Alternatively, the purchaser may occupy the property prior to the registration of the transfer as a tenant and pay rent to the vendor. In this situation, while the vendor enjoys an additional revenue stream (for what is hoped to be a short period), the vendor takes on the risk of vacating the purchaser if the transaction is not completed due to no fault on the part of the vendor.

What steps if any is the lands registry or related government offices taking to help with the registration of documents that may have statutory or contractual timelines?

Algeria - Bourabiat Associés

There is no specific action that has been taken, to date, by the Ministry of Lands (Ministre de l'Habitat, de l'Urbanisme et de la Ville).

Ethiopia - Mesfin Tafesse & Associates

DARA has set up an emergency task force to deal with urgent registration of documents where it can be demonstrated that there is a risk of exceeding statutory or contractual timelines for registering the document.

Kenya - Anjarwalla & Khanna

We have been informed that the Ministry of Lands has:

  1. made provisions for any documents that had been lodged for registration at the lands registry on or before 16 March 2020 to be registered and released to the respective parties through their advocates; and
  2. set up an emergency desk to deal with urgent registration of documents where it can be demonstrated that there is a risk of exceeding statutory or contractual timelines for registering the document.

A&K is looking further into this and will provide more information on this once it becomes available.

Malawi - Savjani & Co.

"No such measures have as yet been communicated.

Mauritius - BLC Robert & Associates

No proposed measures have as yet been communicated by the Ministry.

Morocco - BFR & Associés

The Moroccan Minister of Habitat has not yet taken any action on this issue.

Nigeria - G.Elias & Co.

The Ministry has not taken any steps and is likely not to take any steps. This is because registration of title documents requires the review of the application papers by several units of the Government which typically takes at least six (6) months in Lagos State. In these relatively early weeks of COVID-19 in Nigeria, the Ministry is for now not under pressure to take any radical new steps.

Rwanda - K. Solutions & Partners

The Land Office has made a Public Notice informing the general public that its service shall continue using online service by allowing for submission of applications via different emails addresses which have been issued depending on the location of the applicant.

However, we are unable to ascertain how all services can be provided via email, given the complexity of the land transactions and the requirement of the physical presence of the applicants, especially in order to notarise land documents.

KSP is looking further into this and will provide more information on this once it becomes available.

Tanzania - A&K Tanzania

As far as we are aware, the Ministry of Lands has not taken any steps because the registry is still operating as usual.

Uganda - MMAKS Advocates

"The Ministry of Lands issued a notice on 18 March 2020 requiring all land registry applications to be handed in at the designated front desk and acknowledgment obtained. Notification of progress would be by telephone contact.

Zambia - Musa Dudhia & Co.

The Ministry of Lands has not closed and still receiving documents for lodgement

Is COVID-19 covered by business interruption insurance and what is the threshold for recovery?

Malawi - Savjani & Co.

The closure of a commercial building/mall by the Government pursuant to a public health/quarantine order may trigger an insurance claim.

However, this would be subject to the terms of the individual insurance policy and one would need to review the insurance policy and check with the insurers or insurance brokers on whether the insurance policy includes losses caused by pandemics or closure of businesses due to a public health quarantine order.

Landlords and tenants may need to review their business interruption cover to confirm that it will allow them to recover losses (including loss of rent and profit) suffered due to buildings/commercial centres/malls being closed.

Nigeria - G.Elias & Co.

Designated Peril:
Commercial property or comprehensive package insurance policies typically require a designated peril or cause of loss (for example, a fire or earthquake) in order for the insurance cover to apply. If the business interruption cover forms part of such a policy and the cause of the loss does not qualify as one of the designated perils, then coverage for business interruption will not apply.

Direct physical loss:
Commercial property or comprehensive insurance package policies also typically require direct physical loss to the property as well as proof of causation. Generally, direct physical loss would not include consequential or resulting economic losses to the business.

COVID-19 related claims:
In the event of a claim for COVID-19-related business interruption, questions may arise as to whether the designated peril and direct physical loss requirements have been met.

For example, in circumstances where business premises or manufacturing facilities have been closed as part of a mandatory governmental order or voluntarily closed by the business owner as part of COVID-19 containment measures or out of fear of contamination but the physical facilities are otherwise still habitable and uncontaminated, a generic business interruption cover may not apply since there will have been no property damage or direct physical loss.

According to the World Health Organisation, depending on the type of surface, temperature or humidity of the environment, COVID-19 may persist on surfaces for a few hours or up to several days.  In addition, measures like cleaning the facilities with disinfectant can kill COVID-19. Considering that it is unlikely that COVID-19 will permanently subsist on a surface as to cause the facilities to be permanently uninhabitable, business interruption cover may not extend to interruptions caused by COVID-19.

Exclusions:
Business owners considering COVID-19 related insurance claims will also need to bear in mind the specific exclusions in their insurance policies which may preclude coverage. Generic commercial property insurance and business interruption policies will typically exclude damage arising from epidemics or pandemics.

Bespoke business interruption coverage:
While generic policies may not cover economic losses arising from the suspension or closure of operations due to COVID-19 control measures, bespoke insurance policies may respond to such losses. However, business owners should bear in mind that bespoke insurance comes with high premiums.

Zambia - Musa Dudhia & Co.

Please refer to our FAQs on insurance

General

The closure of a commercial building/mall by the Government pursuant to a public health/quarantine order may trigger an insurance claim.

However, this would be subject to the terms of the individual insurance policy and one would need to review their insurance policy and check with their insurers or insurance brokers on whether the insurance policy includes losses caused by pandemics or closure of businesses due to a public health quarantine order. 

Landlords and tenants may need to review their business interruption cover  to confirm that it will allow them to recover losses (including loss of rent and profit) suffered due to buildings/commercial centres/malls being closed.

Contacts

Adnan Khan

Adnan Khan

Partner, Anjarwalla & Khanna

Amyn Mussa

Amyn Mussa

Partner, Anjarwalla & Khanna

Foued Bourabiat

Foued Bourabiat

Managing Partner, Bourabiat Associés

Francisco Avillez

Francisco Avillez

Managing Partner, ABCC

Fred Onuobia

Fred Onuobia

Managing Partner, G.Elias & Co.

Gulam Farid Patel

Gulam Farid Patel

Partner, Musa Dudhia & Co.

Jean-Eric Sauzier

Jean-Eric Sauzier

Partner, BLC Robert & Associates

Julien Kavuruganda

Julien Kavuruganda

Partner, K. Solutions & Partners

Krishna Savjani

Krishna Savjani

Managing Partner, Savjani & Co.

Mathias Ssekatawa

Mathias Ssekatawa

Partner, MMAKS Advocates

Mesfin Tafesse

Mesfin Tafesse

Principal Attorney, Mesfin Tafesse & Associates

Mona Doshi

Mona Doshi

Partner, Anjarwalla & Khanna

Romain Frédéric Rabillard

Romain Frédéric Rabillard

Partner, BFR & Associés

Sahondra Rabenarivo

Sahondra Rabenarivo

Managing Partner, Madagascar Law Office

Salimatou Diallo

Salimatou Diallo

Partner, SD Avocats

Stephen Zimula

Stephen Zimula

Partner, MMAKS Advocates