Questions Business Owners Must Ask Their Landlord, Banker or Supplier Amidst COVID-19

questions to ask landlord banker supplier covid 19

ACT NOW TO SAVE YOUR COMPANY’S CASHFLOW!

SAMPLE RELIEF LETTERS AND NOTIFICATION FOR RELIEF – EVERY START-UP, SME OR COMPANY MUST HAVE TO ASK FOR RELIEFS FROM THEIR LANDLORD, BANKER OR SUPPLIER

 

DOWN BUT NEVER OUT

It has been a truly trying time for everybody dealing with the COVID-19 virus pandemic. The dreadful virus has spared nobody from individuals, small businesses, big businesses, coffee places, food and beverage outlets to healthcare providers, family members, domestic-workers and now migrant workers usually living in dormitories.

Everyone is fed-up and frustrated to hear another word about “Covid-19” or how many hundreds of people have been infected each day. Every day of rising number of cases is another day that we may be “locked-down” and it is affecting everybody’s sanity.

EXTENSION OF CIRCUIT-BREAKER TIMELINES

On 21 April 2020, the Singapore Government took 2 major emergency steps to contain the virus. First, they are tightening the movement of persons including essential services and second, extending the “circuit-breaker” period to 1 June 2020. The lock-down has been extended but you must continue to keep your spirits up and high.

CHART THE COURSE FORWARD FOR SUCCESS

Everybody is feeling the heat. Unfortunately, the writings are on the walls that all may not be rosy after the circuit-breaker is lifted. If only we knew what will happen in the future we could plan forward.

All is not lost. We can still plan ahead and in light of the Covid-19 (Temporary Measures) Act 2020 (“Act”) which came into effect on 7 April 2020, we can plot and plan to fight another day bravely.

While we remain completely upbeat and positive with you, we ask all our start-ups, SMEs and corporate organisations, battered in this Covid-19 pandemic war, to also strategically plan ahead and expect the unexpected. Tough you say, but we will get through this…

“WE WILL GET THROUGH THIS AND WE WILL BE STRONGER…”

50% of the battle is winning it in your mind. Focus on what you have to do for your company. Choose only the key objectives for the next 3 months to 6 months¹. That is how Intel, Google, Youtube do it; take a leaf from their leadership and management style.

Say it loudly, like a war cry, that “We will Get through This and We Will Be Stronger…”.

ATTEMPTING, TRYING, ADJUSTING, CHANGING AND INNOVATING

Some of you have already gotten comfortable with telecommuting i.e. working from home and others have seized the opportunity by jumping on the on-line platform to sell your products.

Others have taken this opportunity to send their staff for re-training or to plan and charter a new course as soon as the lockdown is lifted. Opportunities are aplenty and doors will open to new avenues. You must look for them and look for them confidently.

As you plan, we provide a quick summary of the reliefs available to Singapore businesses and companies.

COVID-19 (TEMPORARY MEASURES) ACT 2020

The Act offers temporary relief (“Relief”) to businesses (and individuals) who are unable to perform their contractual obligations owing to Covid-19 on or after 1 February 2020.

It is important to note that the Reliefs are for contracts that were entered into before 25 March 2020. Therefore, if you entered into an agreement on or after 25 March 2020, the Act would not come to your aid².

For Tenants in Commercial / Industrial / Non-Residential Property

  • As a tenant, the Landlord cannot terminate your lease or evict you.
  • The tenancy can be suspended for up to 6 months.
  • If you are unable to pay your rent from 1 February 2020 or later, then you can apply for relief.
  • Your inability to pay must be related to Covid-19; and
  • Your rental obligations before 1 February 2020 is still your liability and Relief will not be given.

What can you do?

  • Apply for Relief if your obligation arose after 1 February 2020;
  • For rent owing before 1 February 2020, negotiate with your landlord;
  • If you have a difficult landlord, apply for Relief anyway;
  • Be aware that section 29 of the Act requires the landlord to pass the property tax rebate to you. This means that your rent should be lower.
  • However, we note that the amount may not be significant. Depending on whether you are in the event management or tourism-related industry and food and beverage industry, the rebates to the owner will be 100% and for every other commercial tenancy, the rebate is 30%.

For example:

  • Annual rental is $120,000 (i.e. $10,000 a month).
  • Property tax is 10% of annual value. (10% x $120,000). The property tax payable would be $12,000.
  • The rebate given by the Government to owners is 30% of the property tax,(30% of $12,000). If the commercial property is in events, tourism or F&B, then the amount is $12,000.
  • The landlord would receive $4,000 or $12,000 as the case may be in rebate which must be passed onto you.

Bear in mind that this is an annual rebate and not a monthly rebate. It means that from your total rental costs, and if we use the above example, $4,000 could be reduced from your overall rental payable. You will notice that this rebate is to defray or lower your rental costs for a noticeably short period. It is not a long-term solution.

The landlord has the discretion to pass the rebate to you over a period of time or a one-off payment. It is not automatic, that you expect a one-off payment or reduction.

Whether it is enough to cover your monthly rental when businesses are affected and continue to be affected is a big question mark. The better view is to aggressively negotiate with your landlord and work a plan that would be mutually beneficial to both parties.

 

For Borrowers

For certain secured loan facilities, companies who are unable to repay secured loan, there will be no enforcement of security held by the banks and financial institutions for commercial or industrial property, plant or machinery secured against the business.

The key word here is “secured” loans. It does not cover unsecured loans such as credit card debt or loans from money lenders.

  • Your reason for not being able to pay the secured loans must be related to Covid-19;
  • It does not cover any loans that should have been paid before 1 February 2020.
  • You would also not have any protection for security enforced before 20 April 2020.

What can you do?

  • Apply for Relief anyway. Buy yourself some time.
  • Plan your finances;
  • Negotiate with your creditors;
  • Consider a business loan but we would urge you to thread very carefully and consider if you are able to repay the loans measuring against your future business;
  • Be aware that even if you have obtained Relief, it does not free you from paying your loan repayment amounts. It merely buys you time and you must have a plan in place on how you are going to make repayments.
  • The Relief is for a period of 6 months starting from 20 April 2020 until 19 October 2020.

For Buyers Buying on Hire-Purchase for Company’s or Commercial Use

  • If you are unable to pay the instalment,
  • the goods for commercial purposes are not subjected to repossession;
  • Any insolvency or Court proceedings will not be allowed to be commenced;
  • To be clear, it does not cover goods which are for personal purposes;
  • It does not apply to vehicle rental agreements; and
  • All payments before 1 February 2020 are still due and payable to the principal.

 

SPECIAL CATEGORIES

For Contractors and Sub-Contractors

For contractors or sub-contractors who are unable to fulfil their obligations or deliver their obligations under your contract or supply contract, you can apply for Relief so long as the reasons for your inability to fulfil your obligations are due to Covid-19.

The Relief will serve as a defence to a claim for breach of contract. The other party will not be able to commence any proceedings or call on any performance bond against you from 20 April 2020 to 19 October 2020.

It is quite likely that most of your work may have been carried out by migrant workers and they may no longer be working with you for a variety of reasons.

This relief is not a mechanism for you to avoid fulfilling your obligations even if you think that you may lose money if you were to continue with the project. Your existing obligations under the contract must still be completed.

For Event-Organisers and Tourism-related Companies

All contracts related to events, venue-booking, tours, catering and transport would qualify for Relief as long as it was an occurrence after 1 February 2020 and before 25 March 2020.

  • Be aware that it only to applies to contracts governed under Singapore law; and
  • It does not apply to contracts for air travel such as airline tickets.
  • The relief ensures that your deposit cannot be forfeited or to pay for any cancellation fees.

What can you do?

Negotiate with the provider to find a fair figure or for a 100% refund.

 

WHAT IS THIS RELIEF AND HOW DOES IT BENEFIT MY COMPANY?

The act provides for you to file and serve a notice by email by use of a form or format known as a “Notification For Relief” stating, among other things, that you are seeking relief for a certain category and your proposal for repayment if any.

If the other party rejects or refuses the Notification For Relief, you can apply to an Assessor for an assessment to be made where relief should be granted to you. Lawyers are not permitted to attend to represent you but it does not prevent you from seeking legal advice. The Assessor’s decision is not appealable which means his decision is final.

It is supposed to be a quick and easy way for the Assessor to decide and reach a fair decision for both parties.

The success of your case would depend very much on the discretion of the Assessor and the assessment will be based on the current environment and the careful facts presented to the Assessor for you to be successful.

LETTERS FOR YOUR USE

For completeness, we provide a sample form of the Notification For Relief which you may use and customise Under Section 9(1) of the Act read together with Regulations 9(2) 2020³ as a shield to claim, defend or to ask for relief.

We have also included 2 draft letters to the Landlord and the Bankers for your use as you see fit (just leave your email address here and we’ll send it to you via email within the hour).

  1. Notification For Relief Form;
  2. Letter To Landlord; and
  3. Letter To Banks / Financial Institutions

 

We have explained above what protection is available to you. Preserve your cashflow or obtain whatever Reliefs you can receive for your benefit.

The draft letters are for you to customise and are appended for your use.

Should you have any queries, concerns, require additional assistance or just want to chat with someone in confidence, please do not hesitate to reach out to us. We are here to help you out.

Together “WE WILL GET THROUGH THIS AND WE WILL BE STRONGER…

Stay Well, Stay Safe, Stay Home. Use your masks, wash your hands, Smile and Be positive always.

 

References

¹“Measure What Matters”; John Doerr (Penguin Business:2018); at page 51

²Section 4 of COVID-19 (Temporary Measures) Act 2020 (“the Act”)

³Regulations 9(2) Covid-19 (Temporary Measures)(Temporary Relief for inability to Perform Contracts) Regulations 2020


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DL LAW CORPORATION is a Singapore-based law firm that helps businesses and business owners with their legal needs. The firm is a keen supporter of Small and Medium Enterprises and advises many SMEs on their legal issues, both corporate and litigation matters. Grab a FREE CONSULTATION today at www.dllclegal.com or send your email to contactus@dllclegal.com to book your appointment.

The contents and views set out above are those of the author(s) and/or are personal views and for information only. It does not constitute in any way any legal advice or representation to the reader even if the facts appear similar to your fact situation. You are strongly encouraged to seek legal advice should you have any legal issues.


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