During the pandemic, legislation has provided some layers of added protection for commercial rental tenants – in some states this protection has already ended and at the end of this month, it ends in more states. Here Marianna Idas, Principal Solicitor at eLease Lawyers, wraps up the key things tenants should know.
The COVID-19 outbreak has brought unexpected hardship and uncertainty to many landlords and tenants throughout Australia.
The Australian Government introduced legislation to help both parties through these difficult times, but these legislations have changed, and some are coming to an end. Each state is different, so we recommend speaking with your specialist commercial leasing lawyer to obtain advice.
New South Wales
The Retail and Other Commercial Leases (COVID-19) Regulation (No 3) 2020 has been extended to allow ongoing but limited protection until 28 March 2021.
From 1 January 2021, only retail shop tenants may still make a request for rent relief until 28 March 2021.
Any existing arrangements for rent relief are to continue if expressly agreed by the parties otherwise, a new request must be made to the landlord for rent relief from 1 January 2021.
Victoria
The COVID-19 Omnibus (Emergency Measures) (Commercial Leases and Licences) Regulations has been extended to 28 March 2021.
Tenants may seek rent relief for the period between 29 March 2020 to 28 March 2021 provided they make a compliant request in the specified form under the legislation.
Queensland
The Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld) has been extended to 30 April 2021.
The existing relief period has not been extended beyond 31 December 2020.
Landlords are prohibited from taking certain action concerning nonpayment of rent or other monies if the breaches occurred between 29 March to 31 December 2020.
Australian Capital Territory
The Leases (Commercial and Retail) COVID-19 Emergency Response Declaration 2020 (No 2) and Rates (Commercial Land) Exemption 2020 (No 3) has changed to result in the termination of commercial rates/rent relief from 31 January 2021.
Western Australia
The Commercial Tenancies (COVID-19 Response) Act 2020 has been extended to 28 March 2021. Thus the protection for eligible tenants continues to 28 March 2021. If a tenant is no longer an eligible tenant, then the landlord may take action for defaults occurring after 29 September 2020.
Tasmania
From 1 February 2021, landlords are no longer banned from increasing rent or taking other action in relation to breaches of leases.
Northern Territory
The Tenancies Legislation Amendment Act 2020 (NT) has been extended to 23 March 2021. Landlords must still negotiate with the tenant in good faith before they can terminate the lease due to any breaches before this date.
South Australia
Regulations allowing protection to tenants ended on 3 January 2021. Thus, any breach after this date may allow the landlord to terminate the lease.
In all states, it is advisable that both parties enter into discussions on how best to avoid the legislation’s uncertainty and limitations.