The COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW), which came into effect on 25 March 2020, amended a number of acts, including the Residential Tenancies Act 2010 (NSW) (Act). This has allowed the Minister to make regulations temporarily restricting a landlord’s enforcement actions under a lease as a result of the impact of COVID-19 on a tenant’s ability to perform its obligations. As a result, the Residential Tenancies Amendment (COVID-19) Regulation 2020 (NSW) (Regulations) under the Act came into effect on 15 April 2020.

What has changed?

With effect from 15 April 2020, landlords are prohibited from:

  • issuing a termination notice on an impacted tenant (being a member of a household impacted by the COVID-19 pandemic) or applying to the Tribunal for a termination order for a breach of a residential tenancy agreement arising from an impacted tenant’s failure to pay rent, water usage charges or other utility charges
  • listing the personal details of an impacted tenant (being a member of a household impacted by the COVID-19 pandemic) on a residential tenancy database due to the non-payment of rent, water usage charges or other utility charges payable under a residential tenancy agreement.

In addition, any termination notice given by a landlord to a tenant during the period 15 April 2020 to 14 October 2020 which operates to terminate a residential tenancy agreement:

  • at the end of a fixed term tenancy or periodic agreement
  • as a result of tenant breach (other than due to non-payment of rent, water usage charges or other utility charges)
  • which is for a long-term tenancy where the tenant has been in occupation for 20 years or more

must give at least 90 days’ notice of the termination.

What is a household impacted by the COVID-19 pandemic?

A household impacted by the COVID-19 pandemic is one where one or more of the rent payers has:

  • lost employment or income as a result of the impact of the COVID-19 pandemic
  • had a reduction in work hours or income of at least 25% due to COVID-19
  • had to stop working or materially reduce their work hours because the rent payer, a member of the household or someone whom the rent payer cares for fall ill with COVID-19,

and, as a result, the weekly household income (comprising the total weekly income of all rent payers in the household, including any government payments) for the household has been reduced by 25% compared to the weekly household income for the household before the occurrence of any of the above matters.

Does that mean landlords cannot evict a tenant?

No – the prohibitions under the Regulations only apply to an impacted tenant.

However, a landlord may give a termination notice to an impacted tenant or apply for a termination order to be issued on an impacted tenant where it would otherwise be prohibited from doing so under the Regulations if:

  • the notice is given or the application to the Tribunal for a termination order is made at least 60 days after 15 April 2020
  • the landlord and impacted tenant have participated, in good faith, in formal rent negotiations
  • it is fair and reasonable in the circumstances of the case for the landlord to give the termination notice or apply for the order.

The landlord retains its rights under a residential tenancy agreement in respect of non-impacted tenants.

Things to note:

  • the above changes will be in effect for a temporary period of six months commencing 15 April 2020, unless extended
  • the above changes do not affect social housing
  • similar changes apply to Boarding Houses under the Boarding Houses Regulation 2013 (NSW).