In our previous alerts (here and here), we discussed the status of the New South Wales, Victorian and Queensland legislation giving effect to the (National Code of Conduct) adopted by the National Cabinet on 7 April 2020 to help ameliorate the ramifications of COVID-19 for commercial and retail tenants, and the extensions to the tenancy relief regimes in each of those states.
For ease of reference, the comparison table at this link comprehensively summarises the position from 1 January 2021 in respect of COVID-19 tenancy relief under the relevant state-based legislation giving effect to the National Code of Conduct in each of New South Wales, Victoria and Queensland. Note that the table and this alert only have regard to the relevant New South Wales, Victoria and Queensland legislation giving effect to the National Code of Conduct: we do not consider the other states and territories, the overlay of common law principles, or the potential application of the Corporations Act 2001 (Cth) (including the new restructuring regime for small business in Part 5.3B).
As you can see, there is now quite substantial divergence between the application of the National Code of Conduct as between the states, the key aspects of which are summarised below.
New South Wales
In New South Wales, there is now a bifurcation of the rent relief regime with a limited extension until 28 March 2021 applying only to retail tenants with a turnover of less than $5 million (in the 2018-2019 FY) and where their December quarter turnover fell by at least 30%.
This means that for tenants under leases of commercial premises (including commercial office tenants and tenants under leases of retail premises that fall outside the scope of the Retail Leases Act 1994 (NSW)), rent relief - whether in the form of waivers, deferrals of rent or both - is no longer available from 1 January 2021.
In respect of retail tenancies, if an eligible tenant has previously agreed to a rent relief arrangement, this agreement is not automatically extended until 28 March 2021 (unless the parties previously agreed for that to occur). Instead, the NSW regulations permit parties to make a second or subsequent request to renegotiate subject to certain conditions. In order to make a further request for rent relief, the eligible tenant will need to re-establish its eligibility under the regulations.
In Victoria, the rent relief regime in place since the extension from 29 September 2020 to 31 December 2020 has been further extended to 28 March 2021. The requirements for a tenant to have an annual aggregate turnover of less than $50 million and qualify for the JobKeeper scheme will continue to apply.
As the Victorian regulations provide that any entitlement to rent relief only applies from the date that an application for rent relief is made, tenants seeking further rent relief for the period from 1 January 2021 to 28 March 2021 will need to make a further application for rent relief for that period.
In Queensland, the extended response period has now ended (as of 31 December 2020). This means that rent relief (whether in the form of waivers, deferrals of rent or both) is no longer available for the period from 1 January 2021 onwards.
However, to the extent that tenants were eligible for relief during the response period and/or the extension period (so, until 31 December 2020), landlords remain unable until 1 May 2021 to take enforcement action - such as drawing down on bank guarantees or terminating leases - in respect of arrears of rent and outgoings or non-trading from those premises that relate to the applicable periods, assuming that the tenants had applied for relief and complied with the conditions negotiated for that relief.
To see the comparison table please click here.