Managing Trustees who are engaged in works projects involving a re-development of the land/buildings retained, or complete demolitions and rebuilds will want to understand the implications of the COVID-19 pandemic upon their project. The information provided on this page is there to assist Managing Trustees and their professional advisers during the COVID-19 crisis . It explains the requirements of Methodist law, policy and best practice together with the obligations under both property and charity law with which Managing Trustees must comply when undertaking works and developments.
If you are seeking guidance on what steps to take with ongoing or pending projects you should contact your District Property Secretary and the property advisers within the Connexional Team. This guidance is intended to be utilised by Managing Trustees who have already identified their Mission and are now seeking support with their projects while the current lockdown is in place.
This focus note has been updated following the Government guidance issued on 11th May 2020 to assist Managing Trustees who are involved in works projects during the COVID-19 pandemic. Guidance from the Government is evolving on an almost daily basis. This could affect Managing Trustees in different ways; there will be major redevelopment projects underway or about to commence, other Managing Trustees may be undertaking remedial action such as re-roofing, replacing windows, or undertaking structural work to repair and preserve their buildings, or may have commenced smaller or internal projects such as a replacement kitchen or bathroom facilities within a church building. All of these projects could be affected to a degree by the current pandemic.
Government, Industry and Methodist Church guidelines
The Government and Industry bodies have produced updated guidelines to help clarify what contractors can do within the COVID-19 legislation. Although these may not apply to all the types of works projects that Managing Trustees may be undertaking, they impact upon larger works projects and the guidelines set out how this type of work is currently regulated.
Site Operating Procedures
In response, the Government and Industry have been working hard to try and clarify when and how construction works can continue. The Construction Leadership Council, an organisation that drives industry improvement, has been working in conjunction with the Government to agree approaches to existing building contracts. Working together they have produced Site Operating Procedures (“SOP”) which are based on guidance from Public Health England. Version 4 of SOP is now available here.
the changes include updates on issues such as the provision / use of PPE and the requirements to undertake / share risk assessments.
The Government has issued substantively revised guidance which was last updated on 25 May 2020. This guidance is available at :
The guidance includes detailed information which Managing Trustees will need to consider with their contractor on the requirements for risk assessments and what to consider before opening or reopening building sites. Further information on the issues to consider can also be found on the Methodist Church website.
Managing Trustees will be aware that opening or reopening construction sites including those on Church premises open may not be as straightforward as it first appears. Any construction companies carrying out work on Church sites must ensure that they follow SOP. This will require the completion and circulation of a risk assessment, consideration about the number of contractors on site, whether those people on site can undertake the project while remaining 2 metres from their colleagues, and the additional consideration of safety equipment and PPE which may be required to meet current guidelines for the protection of employees. Managing Trustees should undertake their own risk assessment in addition to that prepared by the contractor to consider separately any other matters which may arise in connection with the use of the building, such as by a pre-school for example. The Connexional Property Support Team have produced a template risk assessment and a checklist which should be used when reopening buildings.
Methodist Church Guidance
Even if the particular construction company involved in a Church project resolves to keep a Church construction site open and wants to continue to work, there are other considerations which may prevent them from doing so. Every building project will require the delivery of materials. If supply companies are not open or able to deliver supplies this could frustrate their ability to perform their obligations in any Building Contract. In addition Managing Trustees would need to consider the updated guidance from the Connexional Team.
When considering how this Focus Note may apply Managing Trustees will hear phrases used such as “the Contract is frustrated” and “we can rely on our force majeure clause”. What do these terms mean?
B1 - Building Contract
This term is used to refer to the agreement between the Managing Trustees and the building contractor setting out the terms of the agreement including the extent of the works to be undertaken, the specification of those works, the costs and mechanism for payment and what should happen in the event of a breach of those terms.
Frustration is a legal doctrine which can apply if one party to a contract claims that an event has occurred which was not contemplated by either of the parties at the time the contract was entered into, which has made it so difficult for that party to perform their obligations in the contract that it would be unreasonable to require them to do so.
Frustration brings a contract e.g. a Building Contract to an end because it is no longer possible to perform the terms of the contract. If a claim of frustration is successful the party whose contract has been frustrated can claim damages but cannot require the completion of the contractual obligations.
Example - A contract was entered into where the parties had agreed that a builder would replace all the windows in a Church Hall, the windows were removed and before the windows could be replaced the Hall it burnt down. The builder could not comply with its contractual obligations to provide a new windows in the Church Hall for reasons beyond its control and the contract was frustrated.
At first glance this may appear similar to frustration but it is quite different.
Managing Trustees will only be able to rely on this concept if there is a specific clause in their Building Contract. Managing Trustees can contact TMCP Legal, in the first instance to ascertain whether a force majeure clause is included in the Building Contract.
A force majeure clause typically excuses one or both parties from performance of the contract in some way following the occurrence of certain events. Its underlying principle is that on the occurrence of certain events which are outside a party's control, that party is excused from, or entitled to suspend performance of all or part of its obligations. That party will not be liable for its failure to perform the obligations, in accordance with the clause.
Force majeure can only be used when there is a specific clause in the contract, it does not necessarily bring the whole contract to an end, it may suspend some or all of the terms of a contract until the event has passed. It can only apply in the current situation of COVID-19 if one of the events which are deemed to trigger the clause is specified to be a declaration of a pandemic.
A force majeure is often included in Building Contracts but may not be so named. An example of how the clause may be worded is set out below:
“Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances [the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed and/or the party not affected may terminate this agreement by giving [NUMBER] [days'] written notice to the affected party.”
The clause may or may not list what is considered to be a force majeure event. If it does not there may be a dispute as to whether a force majeure event has occurred.
Managing Trustees may find it helpful to consider the following practical examples of issues which have arisen to help them in considering what steps to take when dealing with their own projects.
TMCP suggest that Managing Trustees contact TMCP Legal in the first instance. Legal advice is also likely to be required and if Managing Trustees do not already have solicitors dealing with the project they may wish to refer to the Panel of Solicitors. Further details on the Panel of Solicitors can be found on the Panel Solicitors page on the TMCP website.
C1 –We had arranged for a local contractor to start routine planned maintenance work at our chapel in the next few weeks. Can this still take place in the midst of the COVID-19 outbreak?
Government guidance changed on 11 May 2020. In light of these changes, and as mentioned above, the Connexional Property Support Team have produced updated guidance which is available on the Methodist Church website. Before commencing works Managing Trustees should liaise safely with their contractor, a risk assessment must be prepared. The requirements for such risk assessment are set out in the Government guidance.
TMCPs guidance is that the Managing Trustees should undertake their own risk assessment in addition to that prepared by the contractor to ensure that they have followed the Government guidance and considered the risks from their point of view which may be different to the risks considered by the contractor. The Connexional Team have guidance on risk assessments which is available on the Methodist website.
Managing Trustees and their contractor will need to consider whether the works are those that can all be undertaken externally meaning the church building does not need to reopen. If that is the case, for example if the routine maintenance was to the roof, or if the plans were for routine external painting then Managing Trustees would need to consider as part of their risk assessment and their review of the contractor’s risk assessment whether it would be possible to comply with the measures on social distancing and safety in the work place referred to in SOP(referred to in Section A above) to enable them to protect the health and wellbeing of both contractors and parties supervising the works including Managing Trustees. Please also refer to the guidance on the Methodist Church website (Coronavirus Guidance).
C2 - We had appointed a contractor to begin emergency repairs to the Church roof. Can this work commence?
Emergency repairs will be required from time to time and the risk of delaying such repairs is that the building deteriorates further. In this situation emergency repairs should be considered carefully. Managing Trustees will need to undertake a comprehensive risk assessment in addition to the one that must be carried out by their contractor. Managing Trustees will also want to be comfortable that their contractor is familiar with the updated SOP (produced by the Construction Leadership Council, referred to in section A above), to ensure that a safe system of work in compliance with the requirements of Public Health England can be implemented and followed. Managing Trustees will also wish to consider the nature of the repairs, for example if roof tiles have blown off the roof or damaged in another way so that the roof is no longer wind and watertight . In this type of situation it may be that the whole roof will need to be replaced. Guidance from the Connexional Team on issues to consider before commencing repairs is available on the Methodist Church website.
C3 Ongoing Projects
C3.1 We are part way through a major building project redeveloping our existing property for Mission in the Twenty First Century. What should we do?
The updated guidance from the Government is intended to enable construction sites to re-open where it is safe to do so. This depends upon whether the works are outside or inside, the outcome of the risk assessments (by the contractor and the Managing Trustees), the stage which the project has reached, the approach of the contractor and the wording of the Building Contract (see definition in Section B).The first thing to do is look at the wording of the Building Contract, TMCP can assist Managing Trustees with this, or alternatively you could approach your legal adviser who prepared the Building Contract on your behalf. The legal adviser should be asked to explain and comment on the provisions in the Building Contract to see if it contains a force majeure or similar clause which states what should happen if unforeseen events should occur and the performance of the contractors obligations in the Building Contract are prevented for reasons beyond its control (this may be called frustration – please refer to Section B for further details).
The next thing the Managing Trustees need to consider is the approach of the contractor.
Are they arguing that works cannot continue because of circumstances beyond their control or are they suggesting they can keep working on site following the completion of the risk assessments (by the contractor and the Managing Trustees), the SOP guidelines (please refer to Section A for information on SOP).
Once Managing Trustees are clear on the terms of the Building Contract and the approach of their contractor the next thing to consider is the stage which the project has reached? Is it at an early stage? Are works advanced? Is the site in a state in which it would be safe to suspend the works? Are the works at a critical point? Is the site secure? Has the site been made safe perhaps by fencing? Are there any tools, machinery or materials on site?
Managing Trustees will need to make a judgement call as to whether the site is safe and secure, if they are uncertain whether further steps ought to be taken they should consult their Surveyors and ask them to inspect the site and provide advice on what steps, if any, ought to be taken now to ensure the site is safe and secure.
If the parties wish to proceed with the works then please see the responses to the questions in Sections 3.2 and 3.3 below for guidance on the steps which the Managing Trustees will need to take to ensure that they have complied with the requirements of Methodist law and policy.
The Managing Trustees should undertake their own risk assessment and ask their contractor to carry out a risk assessment as required by the updated Government guidance and take professional advice from their surveyor on the state of the property. It may also be appropriate to seek legal advice on the terms of the Building Contract. It may be advised that the Managing Trustees have no alternative but to allow the works to continue if the building is not secure or wind and watertight. Managing Trustees will need to consult both their legal adviser and surveyor to assist them in considering the steps which they need to take as it will very much depend upon the circumstances and the wording of the Building Contract. There are a number of factors which should be considered:
Are the risk assessments clear that the contractor can continue on site and have they put in place systems and safeguards to protect their employees enabling them to continue the work minimising any risks of spreading the COVID-19 in accordance with SOP (please refer to Section A for details) and the template risk assessment on the Methodist Church website?
As stated above, it is possible for works to continue. However, Managing Trustees should seek professional advice to ensure that there is a clear unequivocal obligation upon the building contractor to ensure that they accept responsibility to comply with SOP and any additional statutory or industry standard requirements including the requirements of Public Health England as updated from time to time to ensure that a safe system of work is in place and the risk of transmission is minimised. The Managing Trustees’ legal advisers may advise that the original Building Contract should be varied.Please see Section B1.
As this should be a written document, any changes to it would need to be in writing and signed by both parties. Managing Trustees should ensure that they take legal advice before agreeing any variation to ensure that they do not inadvertently release the contractor from other obligations in the Building Contract or inadvertently agree and enter into a new Building Contract.
If that is the case, please contact TMCP so that we can provide your legal adviser with template clauses to assist with the drafting of and variation to the original Building Contract. TMCP must also approve any variation to ensure that it complies with the requirements of Methodist Law and policy. Managing Trustees should also refer to the guidance from the Connexional Team on the Methodist Church website (Coronavirus Guidance) before agreeing any variation to the original Building Contract.
C3.3 Our contractor wishes to continue on site but we are concerned that the nature of the works being undertaken make it very difficult to adhere to the guidance of Public Health England as the project is at an early stage and all work is being undertaken internally. The building is not big and we are concerned it will not be possible to adhere to social distancing while on site. How should we proceed?
The Managing Trustees should seek urgent legal advice, from their legal advisers who should be asked to consider whether the Building Contract contains a provision entitling the Managing Trustees as clients under the Building Contract to deem the COVID-19 outbreak an event of force majeure (see Section B3 for details) and suspend the terms of the Building Contract. If the Building Contract does not contain such a provision the Managing Trustees should ask their legal advisers for advice on whether it is possible to consider other provisions of the Building Contract to address these concerns.
Managing Trustees should also ask their legal advisers to check whether the Building Contract requires the contractor to adhere to current law and practices in the construction industry. If not, is it may be possible to agree a variation to the Building Contract to ensure that compliance with SOP (see Section A for details) and any subsequent guidance or legislation that is mandatory.
Managing Trustees need to consider is whether there are already funds in place to meet their pending and future obligations under any Building Contract. If the Managing Trustees are not holding cleared funds for all sums due under the Building Contract they should consider their position carefully.
Managing Trustees should seek legal advice to clarify whether there is a provision in the Building Contract entitling the contractor to an extension of time to complete works in the current COVID-19 outbreak. If not, they should consider whether it would be appropriate to attempt to agree a variation to the Building Contract to vary the timescale for completion of the works and the payment dates. Please refer to guidance in Section C3.2 for guidance on varying Building Contracts.
If the Managing Trustees are dependent on other sources for funding for the project, they should consider whether it is likely that these funds may be delayed due to the COVID -19 outbreak. For example, if part of the funds were to be applied from the sale of surplus land or premises, has this sale completed? If not, it is possible that during the current crisis the sale may be delayed in line with Government recommendations. Would the Managing Trustees be able to meet their contractual obligations from other funds?
Are the Managing Trustees dependent on grant funding for their project? Is this internal grant funding from the Connexional Grants Team? If so, Managing Trustees should contact the Connexional Grants Team to clarify whether there will be any delay in the release of these funds.
Is the grant from a third party source such as The Joseph Rank Trust, another local charity or the National Lottery? Managing Trustees should contact any external grant funder to ascertain whether the grant will be available when needed to meet a payment due under a Building Contract. If there is likely to be a delay due to the COVID-19 outbreak this will need to be addressed at the earliest opportunity and the Managing Trustees should seek help from either TMCP Legal or their legal advisers in the first instance. It may be possible to agree a delayed payment to a Contractor or it may be necessary to source funds elsewhere perhaps with funding from another Local Methodist Church, Circuit or District or even bridging finance from Methodist Chapel Aid.
If part of the funding is from rental income due, the Managing Trustees may need to consider what the effect on the project would be if the tenant were to request to defer rent or request a rent holiday. Please refer to COVID-19 FAQs FAQ 4 to FAQ 8 relating to non-residential leases for further information on this process.
C5 - Our contractor has told us he cannot continue and the Building Contract is frustrated. What does this mean and what should we do?
The first thing to do is inspect the property. Is it wind and watertight? Is the site secure? Has the site been made safe perhaps by fencing? Are there any tools, machinery or materials on site? If the property is not safe, secure and weather tight the Managing Trustees should ask their surveyor or project manager to inspect the property and schedule what works would be required to ensure the property was safe, secure and weather tight.
Once the property has been inspected, the next step is to look at the wording of the Building Contract (see Section B1), the Managing Trustees should contact TMCP in the first instance and also seek legal advice in these circumstances. Managing Trustees should seek advice on the precise wording of the Building Contract. What does it say? Does the Building Contract contain a force majeure clause (see Section B3 for details)? Does your solicitor advise that the COVID-19 outbreak could be considered an event causing frustration (see Section B2 for details) or are there contractual provisions providing for additional time to be allowed to complete the works.
It is important that Managing Trustees take legal advice as quickly as possible before responding to the building contractor and carefully consider their response. Managing Trustees may wish to avoid a Building Contract being considered as frustrated as it is often more difficult to engage a new contractor to complete a partial project than to undertake the whole project. If the Property is wind and watertight and the site is secure the Managing Trustees should consider whether it is possible to agree to vary the contract by agreement with the contractor.
If Managing Trustees are considering varying a Building Contract, as stated above, it is very important that they take legal advice to ensure that they vary the existing Building Contract rather than inadvertently agreeing and entering into a new Building Contract. TMCP should be asked to review and approve any variation so that Managing Trustees are clear it meets the requirements of Methodist Law and Policy. Please refer to Section C3.2 for details of the steps that Managing Trustees need to take.
C6 - We are about to sign a Building Contract for works on a Church Building. Should we sign now?
If a Building Contract had not been signed before lockdown was announced on March 2020 but the works and contract provisions had been agreed, Managing Trustees may wish to contact their contractor to ask if they are able to conduct a risk assessment to consider whether it would be safe to commence the works. Managing Trustees will also need to undertake a risk assessment of their own and consider whether there are any other parties using other parts of the property. If works are to commence Managing Trustees and their contractor will need to be satisfied that the works can be undertaken safely while maintaining social distancing and implementing all other steps necessary to protect users and visitors to the property. Further guidance on the steps to consider before commencing works is available on the Methodist Church website.
Managing Trustees should also consider whether all the funds needed for the works under the Building Contract are already in place. For example, if Managing Trustees are waiting for funds from a sale where contracts have exchanged this may be affected by the COVID-19 pandemic. See Section C4 for guidance on the points to consider on funding for works projects.
If Managing Trustees are dependent upon funds from third parties they should check whether the third party is able to release funds at the current time or whether there is any likelihood of delay in the release of funds which could affect the ability of Managing Trustees to meet their financial obligations under a contract.
If the Building Contract has not been signed yet, unless the Building Contract contains a specific provision it is unlikely that the COVID– 19 pandemic would be considered a force majeure event (see Section B3) or an event capable of frustrating (see Section B2) the Building Contract as it was in existence before the Building Contract was signed. This is because COVID-19 has already been declared a pandemic so it is within the knowledge of the parties before the Building Contract was signed.
However, Managing Trustees and their professional advisers should consider the position very carefully. Depending on how long the COVID-19 pandemic continues this could affect a contractor’s ability to perform its obligations in a Building Contract for some time or may affect the ability of the Managing Trustees to meet their financial obligations in such a Building Contract.
C7 - The building contractor wants to continue to work on a project on the Church Building but we wish to put the project on hold as we are dependent on the proceeds of a property sale and the Connexional Team guidance is that works should not be undertaken unless its an emergency, what should we do?
In this situation, Managing Trustees should take urgent legal advice and consider the guidance given in Sections C3, 4, 5 and 6 of this Focus Note. The Managing Trustees should ask their legal advisers to review the provisions of the Building Contract, and confirm if it contains a force majeure provision (see Section B3)? Are there any contractual provisions which set out the circumstances where the Managing Trustees can require the building contractor to suspend work on site? This would be an unusual provision. What is the advice the Managing Trustees have received? Is the COVID-19 pandemic sufficient to enable the Managing Trustees to insist upon a variation to the Building Contract and a delay to the works.
If not, the Managing Trustees should consider instructing their legal advisers to attempt to reach agreement with their contractor to agree terms to vary the Building Contract. As discussed in Section C2) any variation should be in writing, prepared by your legal advisers to avoid any unintentional release of the original Building Contract terms. The variation agreement should be reviewed and approved by TMCP to ensure that it complies with the requirements of Methodist Law and Policy.
If the contractor is unwilling to agree a variation and suspend work on site then unless the guidance from the Government about construction projects changes it may not be possible for Managing Trustees to prevent the works from proceeding without being in breach of the terms of the Building contract.
Before insisting works on site are suspended Managing Trustees should take urgent legal advice on the provisions of the Building Contract and potential liabilities if the Managing Trustees do prevent the project proceeding without the agreement of the contractor.
C8 - In preparation for our new Minister, who is arriving in the Circuit shortly, some work needs to be undertaken to the Manse so it will be ready for their arrival. Our current Minister is still living in the Manse. What should we do?
Managing Trustees will of course wish to prepare for any new Minister while still ensuring that provisions are in place to protect the existing Minister and his/her family. In addition to the guidance on Building Contracts generally, the Government has produced some specific guidance around the issues of undertaking works in residential property.
Before undertaking any works a comprehensive risk assessment will be required. This will need to consider not only the risks around those entering the property to undertake works but also the risks to the householder and their family. If Managing Trustees have specific questions about individual projects please refer to the guidance on the Methodist Church website or alternatively, if this does not answer their question may wish to contact the Connexional Property Support team.
If you have any queries in relation to the guidance in this document please contact TMCP Legal for further assistance and feel free to call members of TMCP Legal using the telephone numbers which you will have at the foot of emails received from members of the team.
Updated 29th May 2020