18 Feb 2021

2021 Update: What you need to know as COVID-19 measures for commercial and residential tenancies are coming to an end

By the Real Estate team

With the end of COVID-19 relief imminent in most Australian jurisdictions, commercial and residential landlords should note the key dates to ensure they continue to comply with COVID-19 measures, and prepare for life after relief measures expire.

Australian Capital Territory

Commercial tenancies

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.

Residential tenancies

Measures prescribed by the Residential Tenancies (COVID-19 Emergency Response) Declaration 2020 (No 3) has been extended to 30 April 2021.

Landlords cannot evict COVID-19 impacted tenants who accrued rental arrears during the six month moratorium on evictions (22 April 2020 to 22 October 2020), on the condition that tenants pay rent as it falls due after 22 October 2020.

COVID-19 impacted tenants may terminate their fixed-term tenancy agreements early without penalty. Tenants on pre-6 April 2020 fixed term tenancies 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).

New South Wales

Commercial tenancies

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, an impacted tenant (being limited to eligible retail shop tenants) may make a request for rent relief until 28 March 2021 by providing evidence of their eligibility to their landlord.

Any previous rent relief arrangements at 31 December 2020 are not automatically extended, unless the parties agreed to the extension, and the new request for rent relief must cover a different time period than any previous rent relief.

Residential tenancies

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 be lifted on and from 26 March 2021.

Northern Territory

Commercial tenancies

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 the tenant to remain in the leased premises before issuing a notice to quit.

Residential tenancies

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, and the period for which rent must be in arrears before a breach notice can be issued, to 60 days continues to apply to 23 March 2021.

Queensland

Commercial tenancies

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.

The rights and obligations that accrued during the existing relief period are preserved and the temporary dispute resolution process may continue until 30 April 2021. However, the existing relief period has not been extended beyond 31 December 2020.

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.

Residential tenancies

Most measures prescribed by the Residential Tenancies and Rooming Accommodation (COVID-19 Emergency Response) Regulation 2020 ended on 30 September 2020, with certain provisions retained until 20 April 2021.

South Australia

Commercial tenancies

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.

Residential tenancies

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 continued to apply for tenants experiencing financial hardship until 6 February 2021.

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.

Tasmania

Commercial tenancies

The Tasmanian Government extended the Financial Hardship Period for commercial tenancies until 31 January 2021. No other changes were made to the eligibility criteria.

From 1 February 2021, landlords will no longer be banned from enforcing rent increases or taking other prohibited actions in relation to a protected lease on the grounds of a relevant breach of the lease.

Residential tenancies

The emergency period in relation to residential tenancies also expired on 31 January 2021.

Victoria

Commercial tenancies

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.

Residential tenancies

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, or 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 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.

Western Australia

Commercial tenancies

The "emergency period" under WA's Commercial Tenancies (COVID-19 Response) Act 2020 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.

Residential tenancies

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 is of no force and effect, until 29 March 2021.

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Disclaimer

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.