Commercial Tenancy Relief Scheme Bill

The Commercial Tenancy Relief Scheme Regulations 2021 (Vic) have now been released, introducing a new Scheme similar to the Commercial Tenancy Relief Scheme which operated until 28 March 2021 under the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) (repealed).

The Regulations, and therefore the new Scheme, will retrospectively commence on 28 July 2021, and are revoked on 16 January 2022.

The new Scheme will apply to "eligible leases", being a retail lease or a non-retail commercial lease or licence that is in effect on 28 July 2021 and under which the tenant is an "eligible tenant".

Under the new Scheme, a tenant may request rent relief from its landlord during the "protection period" which starts on 28 July 2021 and ends on 15 January 2022 if the tenant meets the 30% decline in turnover test. The Regulations set out the process which must be followed to determine the rent relief applicable, noting the landlord's offer of rent relief must, at a minimum, be proportional to the tenant's decline in turnover, and at least 50% of the rent relief offered must be a waiver of rent unless the parties agree otherwise. A tenant may make subsequent rent relief requests if, after a rent relief agreement is made, the tenant's financial circumstances materially change.

As under the previous Scheme, if a tenant has made a rent relief request, a landlord is prohibited from evicting the tenant because of non-payment of rent or outgoings, or calling on any security relating to non-payment of rent. Further, during the protection period, there must not be any rent increases unless the parties agree otherwise in writing.

For a more comprehensive article on the Regulations and the new Scheme, please go here.

Significant duty changes following 2021-22 budget

Significant changes to Victorian stamp duty and land tax arose as a result of the 2021-22 budget by way of the State Taxation and Mental Health Acts Amendment Act 2021.

In summary:

Stamp Duty

• a new general stamp duty rate has been introduced for dutiable transactions with a dutiable value of over $2M. The rate is $110,000 plus 6.5% of the value in excess of $2M;
• there has been a temporary increase in the threshold for the existing off-the-plan concession to $1M for certain off the plan contracts dated 1 July 2021 to 30 June 2023 provided certain criteria are met;
• a temporary exemption and concession for certain transfers of new homes within the City of Melbourne that have a dutiable value of up to $1M has been introduced provided certain criteria are met; and
• an exception to duty has been introduced where certain shared equity arrangements between a person and the State are met.

Land Tax

• there will be an increase in the land tax rate for certain landholdings with a taxable value between:
  • $1.8m to $3m: 1.3% to 1.55%;
  • greater than $3m: 2.25% to 2.55%,

  as at 1 January 2022;

• there will be an increase in the threshold for applicability of land tax from $250,000 to $300,000 as at 1 January 2022; and
• there will be an extension of the exemption to up to two years for vacant residential land tax for new developments to allow developers more time without being subject to further land tax.

Amendments to plan of subdivision entitles purchasers to rescind contracts of sale

In Burger v Longboat Holdings Group2 Pty Ltd [2021] VSC 469, the two Plaintiffs had each entered into an off-the-plan contract of sale to purchase a two-bedroom apartment in the development owned by the Defendant.

The Plaintiffs argued that amendments made by the Defendant to the plan of subdivision for the development materially affected the lots purchased by the Plaintiffs, thus entitling the Plaintiffs to rescind the contracts pursuant to section 9AC(2) of the Sale of Land Act 1962 (Vic) and the deposits to be refunded.

The Supreme Court of Victoria held that the following amendments to the plan of subdivision did materially affect the lots, each change giving the Plaintiffs a right to rescind their contact:

• a change to the configuration, and the reduction in the size, of the master bedroom which detrimentally affected the utility of the room eg. the ability to position and manoeuvre furniture in the bedroom;
• changes to the light court resulting in a reduction of the natural light available in the master bedroom, when considered together with the configuration and size changes to the bedroom;
• the Plaintiffs' exclusive rights over common property being reduced due to the creation of a public reserve over an area previously shown on the plan to be common property; and
• the Plaintiffs' loss of the right to use an (albeit small) area of common property for a terrace.

Conversely:

• the change in location of a car park space from the top of a stacker to the bottom of the stacker; and
• a change in the length and area of a car park space (where no evidence was provided as to a statutory minimum length for a car park or the effect of the change eg. fewer types of car being able to utilise the space),

were not held to be amendments which materially affected the Plaintiffs' lots.

Key takeaway

This case reiterates that when considering whether an amendment materially affects a lot for the purposes of section 9AC(2) of the Sale of Land Act 1962 (Vic):

• "it is necessary to consider the "lot" as a bundle of rights… which may include storage cages, car parks, and the rights to common property vested in the lot owner as member of an owners corporation"; and
• "the degree of effect on the lot is a question of fact in the context of the particular plan of subdivision".

Streamlining of e-conveyancing: Transfer of Land Amendment Bill 2021

The Transfer of Land Amendment Bill 2021 was passed by the Legislative Assembly and was read a second time by the Legislative Council on 5 August 2021. The amendments are of a mechanical nature to streamline the shift to e-conveyancing. It proposes to amend the Transfer of Land Act 1893 by:

• amending the definition of "counterpart" documents to allow for differences between documents which exist in both paper and electronic form (eg. a wet ink signature on paper vs. on electronic form);
• removal of references to duplicate certificates of title in the Transfer of Land Act; and
• creating a power to pass regulations prescribing a method of electronic notice for most types of notices under the Transfer of Land Act 1893.

After much anticipation the Community Titles Act 2018 (WA) has come into effect in Western Australia

The Community Titles Act 2018 (WA) came into force in WA on 30 June 2021. The Act creates a new form of land tenure in WA, which allows for a freehold lot to be subdivided into 3 tiers of schemes, called "community titles schemes."

WA's community titles law contains some variations to community schemes which already exist in New South Wales, South Australia and Queensland.

Community titles will only be available for new development proposals. As each community titles scheme will have its own community corporation, scheme by-laws and common property, community titles are particularly relevant for mixed use developments incorporating different uses such as shops, restaurants, offices and residential apartments.

The Act contains provisions that:

• plan for the life cycle of a community scheme – including its creation, management and termination;
• provide for shared ownership of common property by all owners, as well as common property that is shared only by the owners of a particular community scheme;
• impose general duties on scheme managers, including a requirement that the scheme managers have a written contract with the community corporation; and
• introduce the requirement for a "community development statement" – a new planning instrument setting out how the community scheme is to be subdivided and developed, including staging and management – which must be approved by the Western Australian Planning Commission.

According to the Minister's Second Reading Speech, the Act is designed to encourage "more vibrant communities, particularly in activity centres, urban corridors and around station precincts." 

Housing Legislation Amendment Bill 2021

The Housing Legislation Amendment Bill 2021 was introduced on 18 June 2021 and referred to Committee. It aims to give effect to the key objectives of the Queensland Housing Strategy 2017-2027 by amending the following:

• Residential Tenancies and Rooming Accommodation Act 2008 (Qld);
• Residential Tenancies and Rooming Accommodation (COVID-19 Emergency Response) Regulation 2020 (Qld);
• Residential Tenancies and Rooming Accommodation Regulation 2009 (Qld); and
• Retirement Villages Act 1999 (Qld).

The objectives of the Bill include:

• restricting terminations of residential tenancies in some cases and providing other additional grounds for landlords and tenants to end a residential tenancy;
• prescribing minimum housing standards and compliance mechanisms;
• strengthening protections for people experiencing domestic and family violence; and
• a power for the Minister to recommend the Governor in Council create regulations.

This Bill is being considered by the Committee in addition to the Residential Tenancies and Rooming Accommodation (Tenants' Rights) and Other Legislation Amendment Bill 2021 that was introduced by the Greens on 26 May 2021 which is more tenant-friendly.

Temporary COVID-19 measures – what's expired and what's been extended?

Expiry of arrangements for signing and witnessing wills and enduring documents

The Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Amendment Regulation (No. 2) 2021 came into effect on 1 July 2021. The Regulation puts to an end the modified arrangements for the making, signing or witnessing of wills and enduring powers of attorney and health directives under the Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Amendment Regulation 2020 meaning:

• a will signed on or after 1 July 2021 will need to be made, signed and witnessed under the ordinary law;
• an enduring POA signed on or after 1 July 2021 will need to be made, signed and witnessed under the ordinary law; and
• an advance health directive (AHD) signed on or after 1 July 2021 will need to be made, signed and witnessed under the ordinary law (however nurse practitioners can continue to complete the certificate in an AHD until the expiry of the Document and Oaths Regulation.

Extension of other provisions to 30 April 2022

A Bill was passed on 2 September 2021 extending the COVID-19 legislation expiry date from 30 September 2021 to 30 April 2022.

The extension (under the Public Health and Other Legislation (Further Extension of Expiring Provisions) Amendment Bill) means some of the temporary measures put in place by the State Government in response to COVID-19 will now be further extended to 30 April 2022. These measures include:

• the modified arrangements for signing and witnessing documents (other than wills, enduring powers of attorney and advance health directives);
• preserving rights accrued under eligible retail and commercial leases during the existing relief period (which ended on 31 December 2020) and allowing the dispute resolution process to continue until 30 April 2022; and
• extending protections for residential tenants experiencing domestic or family violence and limiting re-letting costs for eligible tenants who end their fixed term tenancies early.

Titles Queensland changes

• The Queensland Titles Registry is now known as Titles Queensland and has new bank account details for EFT payments – for more details see here.
• Revised fees for title documents have been released for FY 2021-22- see here for the list.
• The Land Title Practice Manual has been updated as of 31 May 2021. Main updates relate to eConveyancing and caveats. See here for the full list of changes.

ACT: Leases (Commercial and Retail) COVID-19 Emergency Response Declaration 2021 (ACT)

The ACT has reintroduced affording relief to commercial and retail tenants affected by COVID-19.

For more information please refer to our article ACT reintroduces relief for commercial and retail tenancies.

Residential Tenancies (COVID-19 Emergency Response) Declaration 2021 (No 3) (ACT)

The Residential Tenancies (COVID-19 Emergency Response) Declaration 2021 (No.3) came into effect on 2 September. In summary this Declaration:

• introduces a moratorium on evictions for those who are in quarantine and for those who are unable to meet their commitments under a residential tenancy agreement due to the impact of COVID-19
• allows tenants required to quarantine or self-isolate to remain in the property until their quarantine period ends plus a further 2 weeks to comply with a notice or order to vacate
• prevents Landlords of COVID-19 impacted households from issuing their tenants with a notice to vacate for rent arrears (or from applying for orders from the ACAT as a result of unpaid rent during the moratorium period)
• permits lessors, tenants, grantors and occupants to vary existing agreements to allow for temporary rent and occupancy fee reductions or deferrals, effective immediately, and that where a reduction is agreed, there is no impediment to rents or occupancy fees reverting to their previous rates after the agreed period
• prohibits landlords from unilateral rent increases for premises of impacted households during the moratorium period (unless the rent is calculated with reference to the person’s income)
• introduces restrictions on accessing premises under residential tenancy agreements to undertake physical inspections and non-urgent repairs
• permits COVID-19 impacted household to terminate a fixed-term tenancy agreement without penalty by providing a landlord with 3 weeks’ notice
• permits the moratorium to prevent landlords from taking measures to evict COVID-19 impacted households which are in rental arrears to apply even where the household was in rental arrears prior to the commencement of the moratorium period (including where the landlord had previously issued a termination notice, or ACAT had previously made an order in relation to unpaid rent, in respect of the household)
• includes a number of transitional measures to provide support to residential tenants and lessors at the end of the COVID-19 eviction moratorium

Please refer to the Declaration here for more information.

Abolition of stamp duty for off-the-plan contracts up to $500,000

From 1 July 2021, all off-the-plan purchases up to $500,000 will not be liable to stamp duty. This will apply to all buyers (ie. not only first home purchasers).

For more information please refer to the media release by ACT Revenue here.

Residential Tenancy Support Package

The NSW Government has made the Residential Tenancy Support Package available to eligible COVID-19 impacted tenants, together with financial support to landlords.

In summary:

• an eligible COVID-19 impacted tenant is one who can show that:
  • rent-paying members of the 'household' (being anyone who normally contributes to rent) have lost employment, work hours or income due to COVID restrictions or have had to stop working because they or a member of their household (or in their care) were or are ill with COVID; and
  • the household's weekly income has reduced by 25% or more (including any government assistance received) compared to its weekly income between 28 May 2021 and 25 June 2021; and
  • the household continues to pay at least 25% of rent payable;
• there is a moratorium on evictions of eligible COVID-19 impacted tenants, commencing on 14 July 2021 and ending on 11 September 2021; and
• landlords who agree to a reduction of rent may claim up to $3,000 in support payments per tenancy agreement.

For further details please refer to the NSW Fair Trading publication here.

Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2021

The Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2021 commenced 13 August 2021. Key changes include:

• extension of the prescribed period to 13 January 2022;
• an "impacted lessee" is a tenant who:
• qualifies for either of the 2021 COVID-19 Microbusiness Grant, 2021 COVID-19 Business Grant or 2021 JobSaver Payment;
• has a turnover for the 2021/2021 financial year of less than $50 million; and
• has entered into their lease before 26 June 2021;
• landlords are prohibited from taking a prescribed action (being a range of powers ordinarily available to landlords for a breach) due to a prescribed breach by an impacted lessee (being a failure to pay rent or outgoings, or a business not being open during hours specified in the lease) during the prescribed period unless the matter is first referred to mediation or renegotiation; and
• for renegotiations to be conducted in good faith and considering the leasing principles in the National Cabinet Mandatory Code of Conduct released in April 2020.

COVID-19 land tax relief

A landowner who has commercial or residential tenants and has reduced its rental intake due to COVID-19 between 1 July 2021 and 31 December 2021 may be eligible for relief from land tax. To be eligible, the landlord must be leasing a parcel of land to:

• a commercial tenant who has an annual turnover of up to $50 million and is eligible for the Micro-business COVID-19 Support Grant, the 2021 COVID-19 NSW Business Grand and/or the JobSaver scheme; or
• a residential tenant who has had a reduction in household income of 25% (or more) as a result of COVID-19 and in respect of which the landlord is not claiming the Residential Tenancy Support Payment.

The amount of relief will be the lesser of:

• the amount of rent reduction provided to an eligible tenant between 1 July 2021 and 31 December 2021; and
• 100% of the land tax attributable to the relevant parcel of land.

Identification and other eligibility criteria apply. For more information please refer to the guidelines published by NSW Revenue here and the Services NSW publication here.

Strata law changes

There have been a number of changes to various aspects of strata laws. In summary:

• all provisions of the Strata Schemes Management (Sustainability Infrastructure) Act 2021, which amends the Strata Schemes Management Act 2015 (NSW), commence effective 24 August 2021 – notable changes include:
  • facilitating the installation of sustainability infrastructure in strata schemes;
  • by-laws which unreasonably prohibit a lot owner from keeping an animal will have no effect; and
  • permitting NCAT penalty orders of up to $5,500 being enforced by an owners corporation
• the Strata Schemes Management Amendment (COVID-19) Regulation (No 2) 2021 came into effect on 21 July 2021 which permits, amongst other things, voting at owners corporation and strata committee meetings may be conducted via electronic means (teleconferencing, videoconferencing or email) until 20 January 2022;
• the Strata Building Bond and Inspection Scheme (SBBIS) is now online as of 31 July 2021 – under the SBBIS a developer is required to pay a bond of 2% of the building contract price to cover the cost of rectifying early defects which are not addressed by the director.