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Summary of Residential Tenancies and Rooming Accommodation (COVID-19 Emergency Response) Regulation

By Maxine Fenlon

29th April 2020

Below is a brief summary of the Residential Tenancies and Rooming Accommodation (COVID-19 Emergency Response) Regulation (“Regulation”).

The Regulation is made under Part 8 of the COVID-19 Emergency Response Act 2020 which provides that a regulation may make provision for any matter necessary for responding to the COVID-19 emergency, in relation to residential tenancies or rooming accommodation tenancies.

The Regulation generally deals with the following:

1. A tenant is entitled to protection under the Regulation if the tenant suffers ‘excessive hardship’ because of a COVID-19 emergency.

2. Section 6 defines excessive hardship. A person suffers excessive hardship because of the COVID-19 emergency if:

  • they meet at least one of the following circumstances:
    • They or someone they care for suffers from COVID-19;
    • They are subject to a quarantine order;
    • A public health direction has closed their employment or restricted the trade of the employment;
    • They are self-isolating because they or someone they care for are vulnerable;
    • They are unable to work due to travel restrictions;
    • They have been prevented from returning to Australia; AND
    • The person suffers a loss of income of 25% or more or the rent is 30% or more of the person’s income.
    • The landlord may request reasonable evidence of excessive hardship consistent with what a tenant might be requested to provide when a lease is negotiated. (e.g., stand-down certificate from employer etc).
    • There are restrictions on ending a tenancy between 29 March 2020 and 29 September 2020. These include:

3. A landlord cannot evict a tenant who has suffered excessive hardship during the period for failure to pay rent;

4. A landlord must extend a tenancy agreement that is due to expire before 29 September 2020 if the tenant suffers excessive hardship at no cost to the tenant, unless the tenant requests a shorter time;

  • A landlord may only end a tenancy for approved reasons after providing the tenant with a notice to leave where the tenant has suffered excessive hardship. These include sale where the buyer requires the property to be vacant, or the owner or an immediate family member needs to move in.
  • The tenant is experiencing domestic violence (break costs are limited to 1 week rent);
  • The tenant moves in and within 7 days find the property in disrepair;
  • Short tenancies can be extended to 29 September 2020 with agreement by the tenant.

5. If a tenant can substantiate that they have suffered 75% or more lost income and have less than $5,000.00 savings, break costs where a tenant terminates a fixed tenancy will be capped at 1 week rent.

6. If rent is unpaid, the landlord must not give the tenant a notice to remedy breach, but may give the tenant a ‘Show Cause Notice’. Within 14 days of receipt of this, the tenant must either pay the unpaid rent or inform the landlord that they have suffered excessive hardship. If the tenant does not do so, the landlord may give a notice to remedy breach.

7. If the tenant notifies the landlord that the rent is unpaid due to excessive hardship, the landlord may request that the tenant enter into a variation agreement in relation to the tenancy agreement. The parties can also agree to enter into a variation agreement at any time.

8. The RTA have brought out a Tenancy Variation Form (RTA Form 18d) to document variation agreements.

9. There are no guidelines about how the rent should be varied in a variation agreement. However, if the parties can’t agree, they must apply for conciliation under the dispute resolution provisions.

10. Tenants can now refuse entry to landlords for additional reasons which include if they or a member of their household is the subject of a quarantine restriction, entry would contravene a public health direction or a member of the household is ‘vulnerable’.

11. Vulnerable tenants who refuse entry must allow the inspection to be carried out by a virtual inspection, video conference or photographs.

12. The landlord is released from their obligation to repair and maintain under the Residential and Tenancies Act if the obligation is inconsistent with a public health direction or they are denied entry to the premises.

13. There are additional rights on tenants to end a tenancy in the event of domestic violence. A tenant can end their interest in a tenancy agreement by giving at least 7 days’ notice of their intention to leave. Their liability for rent is limited to the end of the notice period. Evidence such as a protection order or police protection order can be requested by the landlord.

Residential Tenancies and Rooming Accommodation (Covid-19 Emergency Response) Regulation 2020

Please contact our Property and Commercial department if you have any queries.

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