1. What are the key things that employers have to consider in relation to social distancing in the workplace, e.g. open plan or spacing of desks, use of shared equipment, limited access to communal facilities, canteen / restaurant, etc.?
Depending on the type of workplace, requirements and recommendations for employers are different. The Notification of the Ministry of Public Health B.E. 2563 Re: Procedures and Standards for Protection From COVID-19 for Workplaces provides recommendations that businesses prone to spreading COVID-19 should consider when reorganising to operate in the new normal. These businesses should:
- clean and disinfect common areas regularly;
- provide sanitary products and equipment (cleaning gels, soap, wet wipes and other disinfecting fluids) for employees and visitors;
- provide protective measures for staff who work in close proximity to visitors; and
- provide knowledge, advice or public relations media about the COVID-19 prevention measures in place at the workplace to employees and visitors to ensure all stakeholders are aware of their responsibilities in preventing the spread of COVID-19.
The measures set out in the orders of the COVID-19 Centre also cover social distancing requirements in the workplace (e.g. controlling the maximum number of participants in any one limited area, maintaining a 1 m social distance, prohibiting certain types of activities involving too many people, and prohibiting the sharing of food). Detailed requirements change based on the type of business and premises.
2. Are there any specific obligations, liabilities or duties of conduct imposed on landlords, tenants or visitors with respect to the use or re-use and decontamination of premises; care, cleaning and maintenance of the exclusive and common areas; reporting requirements and/or measures in case of identified infections; health and safety issues - e.g. recommissioning water systems to avoid virus, installation of plexiglass screens, moving desks to comply with distancing. remodulation of fire prevention strategies (entrance/exit routes)? Is any distinction made between asset classes?
With regard to specific obligations on the part of landlords, tenants and visitors, there are different requirements for different types of premises.
There are no COVID-19 related health and safety obligations imposed specifically on offices. However, the Notification of the Ministry of Public Health B.E. 2563 Re: Procedures and Standards for Protection From COVID-19 for Workplaces provides a set of non-binding health and safety recommendations for procedures that landlords and tenants should follow. These include:
- cleaning and disinfecting common areas regularly;
- providing sanitary products and equipment to employees and visitors;
- providing personal protective equipment for staff who work in close proximity to visitors; and
- providing knowledge, advice or public relations media about the COVID-19 prevention measures in place at the workplace to employees and visitors.
Premises considered risk prone
For other types of premises such as department stores, restaurants, wet markets, and exercise venues, there are a wide range of specific obligations, liabilities and duties imposed on landlords, tenants and visitors such premises. These come from the various Notifications and Orders at both national and provincial level derived from Regulations (No. 1) to (No. 9) issued under Section 9 of the Emergency Decree. Some key obligations for landlords and tenants of the previously mentioned types of premises include:
- social distancing between customers, participants and operators;
- wearing face masks at all times;
- regulating a maximum number of people at a venue at any time; and
- sanitising surfaces in public spaces before use.
3. Are there any rent suspension measures and/or stay of recourses and actions (including eviction) or any Government support initiatives such as a furloughed building grant scheme (if so, maybe only a part of the building should be re-occupied)? When rent suspension measures are available, what is the usual payment mechanism and timing agreed to by the parties?
There are no rent suspension measures, nor any governmental support schemes. If parties wish to pursue a form of rent suspension, this must be negotiated between the parties.
4. Are there any measures regarding relief from the performance of real estate-related contractual obligations?
There is no governmental or regulatory relief from the performance of real estate-related contract obligations.
Contracts that contain force majeure clauses will typically also stipulate the circumstances under which parties may be relieved of their contractual obligations under the contract. Where these do not exist, parties can rely on the force majeure provision under the Thai Civil Commercial Code. However, such events must be unforeseeable, unpreventable and unavoidable and must hamper a party’s ability to perform the contract.
Before invoking a force majeure clause, first consider speaking with the counterparty to negotiate a mutually agreeable solution.
5. Are there any credit facilities in place to mitigate loss of income for landlords?
There are no specific credit facilities in place to assist landlords in mitigating their loss of income. Despite this, the Bank of Thailand has announced a slew of measures to make it easier for commercial banks to extend loans to those in need of liquidity, including landlords. This was done by way of extending soft loans of roughly USD20.7 billion to commercial banks to fund low interest loans for those who need it.
6. Is there any relief from loan repayments / enforcement of loans secured against properties?
Though there is no relief from the enforcement of loans secured against properties, the government has introduced a moratorium on principal and interest debt repayments on debts owed. Further, the Bank of Thailand is allowing debtors to undergo debt restructuring without straining credit history, enabling landlords in dire financial circumstances to restructure their debt.
7. Are public services necessary to complete the sale, acquisition or other operation of real estate assets or companies or to establish the right to open for business (planning authorities, notary public, Land Registry, Companies’ Registry, etc.)?
Public services and departments necessary to complete the sale, acquisition or other operation of real estate assets have not been shut as a result of COVID-19. They continue to operate as usual.
8. Are there any specific processes or protocols available to consummate real estate operations enabling them to comply with any required social distancing (e.g. electronic signature, etc.)?
In Thailand, real estate contracts may be executed by electronic signatures. However, registration documents for submission to relevant authorities must be physically signed.
9. Are contractors who were carrying out works within the premises obliged to resume them? Can building sites reopen when they were closed down? Are there any specific provisions in relation to certain asset classes authorising continuation / resumption of works (e.g. healthcare structures)?
There was no formal order by the Thai government to halt construction projects in any asset classes. Therefore, contractors should, unless they have negotiated otherwise with project owners, continue working as normal.
10. Are there remedies or contractual arrangements available to address impossibility or delay for a party to handover premises to another which are/were to be constructed or refurbished, or for such other party to take over those premises?
Where an agreement between the contractor and the owner of the project contains a delivery delay clause, parties should consider the impact of such provisions. However, in situations where it is impossible for a party to hand over premises to another, we recommend the parties first enter into a dialogue to seek amicable solutions to resolve such issues.
11. Has the duration of validity of administrative authorisations pertaining to development/construction of real estate assets (in particular planning authorisations) been extended?
There have been no extensions to the validity of administrative authorisations relating to the development of real estate assets. If extensions are required, the owner/developer should apply for an extension to the construction permit with the relevant authorities.
Litigation and Regulation
12. Is the use of disclaimers for visitors or others coming on to the site of business useful for limiting potential future COVID-19 claims?
The use of disclaimers for visitors on a premises is not likely to limit potential future COVID-19 claims. It may, however, serve as evidence in a COVID-19 related case, showing that the company did its best to prevent the spread of COVID-19. But as a method for limiting potential future COVID-19 claims, it is far more important to strictly adhere to the health and safety standards imposed by the relevant public authorities in each province.