The NSW Government recently introduced the Retail and Other Commercial Leases (COVID-19) Regulation 2021 (Regulation) to give further temporary relief to tenants impacted by the current lockdown in NSW. View a copy of the Regulation.

Under the Regulations, which commenced on 14 July 2021, landlords will be prevented from taking any ‘prescribed action’ against an ‘impacted lessee’ for a breach of the lease during the prescribed period (being 13 July 2021 until 20 August 2021), unless they have attempted mediation. Prescribed action includes, for example, recovering a security bond, requiring a payment of interest on unpaid rent, evicting the tenant and terminating the lease.

This time, there is a key difference in the definition of ‘impacted lessee’, which no longer refers to JobKeeper but instead refers to the various grants currently available to businesses such as:

  • Micro-business COVID-19 Support Grant;
  • COVID-19 NSW Business Grant; and
  • Job Saver Grant.

For tenants to meet the requirements of an ‘impacted lessee’ under the Regulations, they must, firstly, qualify for one or more of the grants listed above, and, secondly, establish they had a turnover of less than $50 million in the 2020-2021 financial year.

Although the Regulation does not specifically provide for the obligation to re-negotiate rent, the NSW Treasurer announced that commercial and retail landlords will be entitled to apply for land tax concessions of up 100% of their land tax owed in 2021, where they provide rent relief to tenants from 13 July 2021. View a copy of the NSW Government’s media release.