COVID-19 | Emergency measures for tenancy laws in NSW

The economic pressure on tenants and landlords during the COVID-19 pandemic is increasing resulting in the mandated closure of a large number of businesses under the Public Health Act 2010 (NSW) and rise in unemployment.  On 26 March 2020 the COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 (Bill) was passed in New South Wales Parliament.

The Act allows the Minister to recommend to the Governor that regulations be made where the NSW Parliament is not currently sitting, or is not likely to sit within 2 weeks of the regulations being made, and where the regulations are reasonable to protect health, safety and welfare of tenants and residents.  Any regulations made are temporary and expire six months after the regulations commence, or at an earlier date decided by resolution of Parliament.  As at the date of this article regulations are yet to be passed.

What has changed?

Regulations may be made by the Governor prohibiting a landlord or owner/proprietor from:

1. 1. recovering possession of a property from a tenant or resident of the premises;
   2. terminating any type of tenancy agreement (including lease, occupancy agreement or site agreement);
   3. exercising any right of enforcement relating to the premises which will be regulated or exempt; and
   4. exempting tenants from the operation of a provision of any relevant Act or any agreement relating to the leasing or licensing of the premises or land.

Acts affected by these changes?

1. 1. A “relevant Act” for the purpose of the amendments to the Residential Tenancies Act 2010 (NSW) includes:

(a) Boarding Houses Act 2012;

(b) Residential (Land Lease) Communities Act 2013;

(c) Residential Tenancies Act 2010; and

(d) any other Act relating to the leasing of premises or land for residential purposes.

1. 2. A “relevant Act” for the purposes of the amendments to the Retail Leases Act 1994 (NSW) includes:

(a) Agricultural Tenancies Act 1990;

(b) Retail Leases Act 1994; and

 (c) any other Act relating to the leasing of premises or land for commercial purposes.

1. 3. It is arguable that the amendments to the Retail Leases Act 1994 (NSW) may provide regulatory powers for amendments to be made to the Conveyancing Act 1919 (NSW) which governs the landlord’s obligations and rights in respect of re-entering the premises and forfeiture of a lease.

Changes to Retail Trading Act 2008 (NSW)?

Amendments have been introduced to allow supermarkets to open on the following public holidays during April:

1. 1. all day and night on Good Friday 2020;
   2. all day and night on Easter Sunday 2020; and
   3. before 1 pm on ANZAC Day 2020.

Supermarkets includes any retail store or market selling food and other domestic goods.  This does not include retail stores that are department stores, for example clothing stores.  These supermarkets are only to be staffed by workers who have freely elected to work.

What has not changed?

At this stage there are no changes to the Tenancy Laws that require an abatement of rent during these testing times. Tenants and Landlords should communicate with each other openly at the earliest opportunity to seek clarity as to what is expected during these times and whether any financial burden may be eased by way of an abatement or deferral of rent.

At Gadens, our Property Team is well equipped to advise and assist clients that are dealing with the ramifications of the present health crisis.  We are here to help and invite you to contact our office should you require any assistance.

For details of all our COVID-19 tips and updates, visit the Gadens COVID-19 Hub.

Authored by:

Archie Smith, Partner
Belinda Drivas, Senior Associate
Nakita Rose, Lawyer