Over the past year, state and territory governments around Australia have introduced rent relief and other measures to soften the blow to businesses caused by the COVID-19 pandemic. In most jurisdictions, those measures have either ended, or are now coming to an end.
Commercial (including retail) and residential landlords and tenants need to take note of the dates relating to the end of rent relief, to ensure they are complying with current applicable tenancy laws, and to ensure they are prepared for the impact that the end of the relief measures might have on them.
To help you keep up to date with the current situation, here is a round-up of what’s happening around Australia.
New South Wales
The COVID-19 measures prescribed by the Retail and Other Commercial Leases (COVID-19) Regulation (No 3) 2020 have been amended and extended until 28 March 2021.
From 1 January 2021, impacted tenants (which is limited to eligible retail shop tenants) have been entitled to make a request for rent relief until 28 March 2021 by providing evidence of their eligibility to their landlord.
Any previous rent relief arrangements that were in effect as at 31 December 2020 are not automatically extended beyond that date, unless the parties agreed to the extension, and the new request for rent relief must cover a different time period than was covered under any previous rent relief.
Part 13 of the Residential Tenancies Act 2010 (NSW) and Part 6A of the Residential Tenancies Regulation 2019 (NSW) will expire on 26 March 2021.
The moratorium on eviction of residential tenants for rental arrears by residential landlords will end on 26 March 2021, enabling landlords to serve a termination notice on tenants from 27th March on the grounds that the tenant failed to pay rent, water usage charges or utility charges. The extended 90 day notice period for termination will also cease from that date.
The operation of the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld) has been extended to 30 April 2021. A Bill is also currently before the Queensland Parliament that proposes further extending that date to 30 September 2021.
The rights and obligations that have accrued during the relief period are preserved, and the temporary dispute resolution process, which sets out steps the landlords and tenants must follow in attempting to resolve a dispute in good faith, will continue until 30 April 2021.
Landlords under “affected leases” remain prohibited from taking “prescribed actions” in relation to non-payment of rent or outgoings, or failure to open for business during the hours required under the lease, if those breaches occurred during the response period (29 March 2020 and ending on 30 September 2020) or the extension period (1 October 2020 to 31 December 2020).
A party to an “affected lease” is only entitled to seek to negotiate the rent payable (or any further reduction of rent) in relation to the response period or the extension period. There is no statutory right to negotiate any rent payable before or after these periods.
Most measures prescribed by the Residential Tenancies and Rooming Accommodation (COVID-19 Emergency Response) Regulation 2020 ended on 30 September 2020, however certain provisions remain in place until 30 April 2021.
The relevant period under the COVID-19 Omnibus (Emergency Measures) (Commercial Leases and Licences) Regulations has been extended to 28 March 2021.
Tenants of eligible leases are now entitled to seek rent relief for the period commencing 29 March 2020 and ending 28 March 2021. No changes have otherwise been made to the eligibility criteria for rent relief, including the documentation a tenant must provide a landlord in order to make a compliant request.
Changes to residential tenancy laws implemented by the COVID-19 Omnibus (Emergency Measures) Act 2020 have also been extended to 28 March 2021.
Landlords cannot increase rent, issue a notice to vacate, or evict a tenant if the tenant is behind in rent due to COVID-19, until after 28 March 2021. A tenant may still be evicted in certain circumstances, but only if the landlord first obtains a termination order from VCAT.
Tenants are still required to pay their ordinary rent, unless they cannot do so due to a COVID-19-related reason. A tenant affected by COVID-19 may request a rent reduction, and if the parties are unable to reach agreement, a tenant may go to dispute resolution. A tenant may also apply for an order to change the rent.
A 25% land tax discount is available to a residential landlord for the 2020 and 2021 land tax years, and a deferral of the balance of land tax payments is available until 30 November 2021 if the landlord has provided appropriate rent relief to its tenant.
Special regulations that provided protections to tenants in retail and commercial premises ended on 3 January 2021.
Any breach of the terms of a lease from 4 January 2021 can be dealt with by way of a breach notice and normal enforcement measures, including eviction.
The emergency relief granted by the COVID-19 Emergency Response Act 2020 (SA) in relation to residential tenancies expired on 6 February 2021.
Moratoriums on rent increases and termination for failure to pay rent where the tenant was experiencing financial hardship expired on the same date.
The remaining measures prescribed by the COVID-19 Emergency Response Act 2020 (SA) have been extended to 31 May 2021.
Tenants experiencing financial hardship as a result of COVID-19 may continue to apply for the Residential Relief Grant Scheme until 31 March 2021.
The Tasmanian Government extended the Financial Hardship Period for commercial tenancies until 31 January 2021. No other changes were made to the eligibility criteria.
As of 1 February 2021, landlords are no longer banned from enforcing rent increases or taking other actions that were prohibited during the Financial Hardship Period in relation to a protected lease on the grounds of a relevant breach of the lease.
The emergency period in relation to residential tenancies also expired on 31 January 2021.
The “emergency period” under the Commercial Tenancies (COVID-19 Response) Act 2020 (WA) has been extended to 28 March 2021.
The moratorium on evictions, freeze on rent increases, and code of conduct for small business commercial lease rent relief negotiations, continues to apply for “eligible tenants” (being tenants with an annual turnover under $50million who qualify for JobKeeper) to 28 March 2021.
Landlords can now take “prohibited action” (termination, eviction, interest on arrears and enforcing security) against a tenant that is not an “eligible tenant” in relation to defaults occurring after 29 September 2020.
The “emergency period” under the Residential Tenancies (COVID-19) Response Act 2020 is also scheduled to expire on 28 March 2021.
A statutory termination notice issued for non-payment of rent or breach of agreement is, in most ordinary circumstances, of no force and effect until 29 March 2021. Likewise, a notice issued for the increase of rent from 29 September 2020 is valid, but of no force and effect, until 29 March 2021.
Australian Capital Territory
The COVID-19 measures prescribed by the Leases (Commercial and Retail) COVID-19 Emergency Response Declaration 2020 (No 2) ended on 31 January 2021.
The end date for commercial rates relief under the Rates (Commercial Land) Exemption 2020 (No 3) was also 31 January 2021.
Measures prescribed by the Residential Tenancies (COVID-19 Emergency Response) Declaration 2020 (No 3) have been extended to 30 April 2021.
Landlords cannot evict COVID-19 impacted tenants who accrued rental arrears during the six month moratorium on evictions (from 22 April 2020 to 22 October 2020), on the condition that tenants pay future rent as it falls due after 22 October 2020.
Tenants impacted by COVID-19 may terminate their fixed-term tenancy agreements early, without penalty. Tenants on fixed term tenancies that commenced prior to 6 April 2020 can only be required to pay a maximum of two weeks’ rent in advance (post-6 April 2020 tenancies already contain this two week maximum).
The effect of the Tenancies Legislation Amendment Act 2020 (NT) has been extended pursuant to the Minister for Health’s extension of the “emergency period” until 23 March 2021.
Landlords are still required to negotiate in good faith with the tenant to allow them to remain in the leased premises before issuing a notice to quit.
The Residential Tenancies Act 1999 – Modification Notice has also been extended in line with the extension of the “emergency period” until 23 March 2021.
The extension of termination notice periods to 60 days, and the 60 day period for which rent must be in arrears before a breach notice can be issued, continues to apply to 23 March 2021.