The regional real estate, construction and hospitality sectors have been turned upside down over the last two years, with Covid-19 bringing these sectors to a halt. The impact of the pandemic remains, however, the resurrection of these vital sectors across the region is a welcome relief because they support the development of modern cities, which in turn have attracted commerce and tourism to the Middle East and North Africa.
This latest edition of Law Update, provides vital insights, updates and commentary on the latest trends taking shape across the real estate, construction, hotels and leisure sectors. The articles within this edition cover a broad range of topics, from what’s next for real estate in Dubai, to commentary on Saudi real estate, a market that is set to become the main bedrock of the region for years ahead. You will find articles on reforming real estate laws in Qatar, foreign investment and ownership in Oman, and mitigating risks on hotel construction projects and the lessons learnt from Covid.Read the full report
The COVID-19 pandemic has upended nearly every aspect of how companies and individuals do business. While the restrictions are slowly being lifted, we have prepared this Q&A to address key questions that landlords and tenants in Dubai are asking, with the hope of shedding more light on the leasing landscape in Dubai in the wake of the pandemic.
No. The Dubai Tenancy Law (Law 26 of 2007 as amended) and the Civil Code remain the principle legislations governing tenancy relationships in Dubai.
During the period extending from March 2020 and until March 2021, the Rental Disputes Settlement Centre (RDSC) suspended all court judgments that were issued ex parte and the subject matter of which was the payment of monies. At the time of writing, the suspension has been lifted and payment orders are active again.
In addition, specific committees within the RDSC were assigned the task of reviewing tenant and landlord disputes that relate to COVID-19 with a view to ensuring consistency in the judgments that were rendered by the RDSC
The parties to a COVID-19 related dispute were asked to first submit such dispute to mediation by a mediator that is appointed by the RDSC to verify if an amicable settlement can be reached between the parties. The RDSC would consider the dispute only if the mediation process failed in achieving the desired outcome. At the time of writing, these measures have been lifted and a litigating party can directly file a lawsuit relating to COVID-19 before all committees that operate within the RDSC without the need to submit the dispute for mediation.
The Dubai Tenancy Law does not contain provisions relating to force majeure. The concept of force majeure is recognized in Article 273 of the UAE Civil Code.
For an event to be considered as a force majeure under Article 273 of the UAE Civil Code, it must satisfy the following conditions as set out by the jurisprudence of the UAE Courts:
The occurrence of a force majeure event under Article 273, when leading to the impossibility in the performance of the obligations under a lease, can result in the termination of that lease.
Article 249 of the UAE Civil Code recognises the concept of “exceptional circumstances”, which applies where the performance of a contract would involve extreme hardship on an obligor (rather than performance being impossible as in the case of a force majeure event).
For the RDSC to apply the above article, it must verify that the following conditions have been met:
If a claimant is able to successfully establish the occurrence of exceptional circumstances, we would expect the RDSC to reduce the rent to a reasonable level. This authority to reduce the rent could be exercised by the RDSC with a fair margin of discretion. The net effect is not necessarily a full waiver of rent as the RDSC needs to re-balance the lease, taking into account the interests of both the landlord and the tenant, in such a way as to provide an equitable remedy.
The concept of “Personal Unforeseeable Circumstances” is recognised in Article 794 of the UAE Civil Code. A party to a lease may rely on Article 794 of the UAE Civil Code to request the termination of the lease as a result of the occurrence of an unforeseeable event that relates to such party.
If the RDSC issues an order for the termination of the lease at the request of a party who successfully establishes the occurrence of Personal Unforeseeable Circumstances, the RDSC may request that such party pays damages to the other contracting party which damages shall be assessed by the RDSC in accordance with applicable custom. The RDSC has applied this construct in a case where an employee unexpectedly lost her job after signing a fresh lease. The RDSC allowed the termination of the lease by the employee on the condition that she pays the landlord the equivalent of one month of rent.
The precedents of the RDSC are not unified. Termination judgments that have been issued by the RDSC often refer to “exceptional circumstances” but the concept, as adopted by the RDSC, seems to be very broad, with the RDSC retaining a wide margin of discretion in terms of terminating leases.
In general, the occupation of a residential property would not be interrupted as a result of a COVID-19 related event. For this reason, the RDSC is reluctant to terminate leases of residential properties. However, there have been a limited number of exceptions to the rule where tenants have successfully obtained a court order for the termination of their lease in particular cases where they have been made redundant as a result of, or in connection with, a COVID-19 related event. For example in a judgement issued by the RDSC on 8 April 2020, the RDSC found that the dismissal of an employee from his job due to the impact of COVID-19 qualifies as an “Exceptional Circumstance” event and therefore, justifies the termination of the relevant lease. In its judgment, the RDSC stated the following: “The RDSC is of the view that the termination of the Claimant is an event of emergency circumstances, which the Claimant cannot mitigate nor predict. The lease has become burdensome to the tenant to the extent that it is impossible to continue with the lease agreement.” Whether exceptional circumstances exist is a matter of fact that is decided by the RDSC on a case-by-case basis.
No. If a tenant leaves the premises without paying the outstanding rent, the landlord may file a lawsuit or a payment order application (ex-parte) to request from the RDSC the specific performance of the terms of the relevant lease (i.e. payment of rent) in addition to interest and damages. The landlord may also request the RDSC to implement a travel ban against the tenant depending on the amount which is due by the tenant.
Concessions have been granted by major mall operators, but these have been based on purely commercial considerations and the law does not provide the tenant with a right to such concessions. The most common types of concession that we come across are as follows:
Deferred payments. A rent deferment agreement allows a tenant to defer rent payment for a specific period of time that is mutually agreed between the landlord and the tenant. Typically, only a portion of the rent is deferred and the tenant must continue to make minimum payments under the lease. At the end of the period, the tenant would have to resume the payment of rent in addition to paying the deferred rent in periodic instalments. It is important for the tenant to recognize that, under a rent deferral scheme, the rent must still be paid and is not forgiven by the landlord.
Rent free periods. Under a rent free period, the tenant is forgiven from paying the rent for a specific period of time. Market standard rent free periods generally range between 1 to 3 months.
Suspension of Basic Rent. In commercial leases, tenants are generally expected to pay a basic rent in addition to a turnover that is calculated as a percentage of the tenant’s sales that are generated from its activities in the premises. During the initial months of the pandemic, a number of landlords have granted a concession to their tenant by way of applying the turnover rent only.
Under the Tenancy Law, there is no right for the tenant to request a reduction in the rent prior to the expiry of the lease for any reason, including, without limitation, COVID 19. However, for the purpose of renewing a lease, the landlord and the tenant may, prior to the expiry of the lease, amend any of its terms or reconsider increasing or reducing the rent (Article 13). If the landlord and tenant fail to reach an agreement in this regard, the RDSC may determine the fair rent. Where a tenant wishes to seek a reduction in rent for the purposes of renewing the lease, it must notify the landlord of this intent no less than 3 months prior to the expiry of the lease (Article 14) (unless the lease states otherwise).
As mentioned at question 4 above, a tenant could in theory rely on Article 249 of the UAE Civil Code to request a reduction in the rent on the basis of exceptional circumstances.
Based on our understanding of the precedents of the RDSC to date, the guiding principle is that commercial leases can be terminated by the RDSC in instances where the tenant has been severely impacted by COVID-19 and has suffered quantifiable losses that are so significant that the tenant is unable to continue in operating the premises in accordance with the terms of the lease. We would expect that the termination would take effect from the date of the judgment rather from the date on which the tenant suffered the COVID-19 related event. Accordingly, the tenant would not be entitled to a refund of the rent that it would have paid to the Landlord in respect of the period preceding the date of the termination judgment. This guiding principle, which is hybrid in nature and borrows from the doctrine of force majeure and that of exceptional circumstances at the same time, although not entirely consistent with the letter of the law, appears to be based on a sense of fairness, and has now become established precedent at the RDSC.
For further information, please contact Malek Al Rifai