Further to Phil’s response, the Property Law Section of the New Zealand LAw Society has just come out with this list of factors which will likely inform what is a “fair” proportion which will depend on the individual circumstances
• A ‘fair proportion’ should be fair having regard to the circumstances of both
landlord and tenant (by definition a proportion cannot be to pay all or nothing)
• The extent to which the tenant is still using the premises for some purposes (for
example, partly for essential services)
• Balance of the term of the lease
• Nature of the premises and, accordingly, the proportionate change in use and
enjoyment of them while the inaccessibility to fully conduct the tenant’s business
lasts (bare land, retail, offices, warehousing or industrial)
• Whether the tenant is able to conduct business remotely (also taking into account
its use of servers/equipment at the premises (benefit from the premises))
• Value inherent in the premises (for example, fitout, storage, goodwill, business
continuity)
• Rights of termination if the non-access continues
• Tenant’s ability to continue to its business
• Impact on the tenant’s ongoing viability if required to pay the rent (taking into
account any government assistance the tenant may be able to receive)
• the financial position and commitments of the landlord (for example, is the
property mortgaged)
• The landlord’s costs in holding and managing the property (for example, the
landlord’s mortgage obligations and other costs such as ground rent)
• A ‘fair proportion’ may differ as between the rent and outgoings.