Information for Tenants and Landlords

Information for Tenants and Landlords.

Further information is expected to be released shortly from both the Federal and State Governments. Information will be updated periodically to reflect this.

Update: 13 May 2020

On 12 and 13 May 2020, in NSW Parliament, Labor won a significant victory for tenants and landlords across NSW facing financial adversity during the pandemic with amendments to emergency legislation to create a hardship fund helping them stay afloat. Labor's Upper House Leader, Adam Searle successfully moved an amendment, which sees landlords suffering financial hardship receive up to $2,500 per tenancy, which they would be obligated to pass on to tenants in rent reductions. The hardship package works by directing funds from the $250 million Property Statutory Interest Account into the Property Services Compensation Fund. Both the Real Estate Institute and the NSW Tenants Union, supported Labor’s hardship fund, which was similar to action taken in Victoria.

Labor also ensured that there were changes to lease break fees so that they will be capped at two weeks, with the capacity for these fees to be waived in total. Break fees are usually 4 to 6 weeks, therefore it was an important measure as we cannot have tenants facing substantial financial penalties when industries have closed and there are substantial job losses and pays cuts, these tenants are feeling the financial impact of the pandemic and needed our help in reducing the already devastating effect of this crisis.

The Berejiklian Government’s central course of action was a land tax rebate for the wealthiest 16 per cent of landlords, which does not go far not enough to assist those who have been suffering immensely with this crisis. Labor’s amendments will go some of the way to helping NSW tenants and landlords.

Update: 14 April 2020

The Berejiklian Government finally announced details of a rental package, over two weeks after the Morrison Government announced a moratorium on evictions. Though NSW Labor has welcomed the overdue moratorium on evictions, the package is disappointing, lacking in detail and does not do enough to protect tenants during this crisis.

There are many issues with the announced package. The Government has provided no timeframe for the introduction of the moratorium, and it is difficult to see those tenants who work low wage jobs being able to pay the rent arrears after the moratorium. NSW is a 'no grounds' eviction state, which means a landlord can evict a tenant for any reason; and it is unclear how the moratorium will override this part of the legislation. Additionally, only 16% of landlords in NSW paid land tax, so this package will cover a small number of tenants and exclude almost all tenants living in non-metropolitan areas.

Labor is calling on the Berejiklian Government to provide clarification on proposed measures and take further steps to shield NSW tenants during the COVID-19 crisis. We will seek to amend this package where necessary to ensure all tenants and landlords are protected.

The Opposition is calling on the Government to:

Immediately implement an eviction moratorium for tenants financially impacted by COVID-19
Clarify that there will be an amnesty on evictions for non-payment
Clarify the obligations tenants must demonstrate their sudden inability to pay rent
Clarify how landlords and tenants in properties that fall below the land tax threshold will be supported financially.

Labor understands that many landlords rely on income from their rental properties, and believe it the Government's main priority to make sure as many people as possible keep a roof over their heads and some form of income during this health emergency.

If you need urgent help or advice, please contact the Tenants Union: https://www.tenants.org.au/get-advice or LawAccess NSW on 1300 888 529.

Update on Commercial Tenancies: 7 April 2020

After a meeting of the National Cabinet, a new commercial tenancy code of conduct for small to medium sized businesses was announced for commercial tenants impacted by the coronavirus pandemic.

NSW will need to legislate the code of conduct that will see Landlords reduce rents in proportion to the reduction in trade experienced by the tenant.

Please see the full information here: https://www.pm.gov.au/sites/default/files/files/national-cabinet-mandatory-code-ofconduct-sme-commercial-leasing-principles.pdf

The Prime Minister has said residential tenancies are a matter for the States, the information below on this is therefore current due to a lack of action from the NSW Government on residential tenancies.

Update on Commercial Tenancies: 6 April 2020

National Cabinet have agreed that a mandatory code of conduct guided by certain principles will be developed and subsequently legislated by State and Territory Governments to apply for tenancies where the tenant is eligible for the Commonwealth Government’s JobKeeper assistance and is a small- or medium-sized enterprise (less than $50 million turnover).

The principles that guide the code will be:

(a) Where it can, rent should continue to be paid, and where there is financial distress as a result of COVID-19 (for example, the tenant is eligible for assistance through the JobKeeper program), tenants and landlords should negotiate a mutually agreed outcome

(b) There will be a proportionality to rent reductions based on the decline in turnover to ensure that the burden is shared between landlords and tenants

(d) There will be a freeze on rent increases (except for turnover leases)

(e) There will be a prohibition on penalties for tenants who stop trading or reduce opening hours

(f) There will be a prohibition on landlords passing land tax to tenants (if not already legislated)

(g) There will be a prohibition on landlords charging interest on unpaid rent

(h) There will be a prohibition on landlords from making a claim to a bank guarantee or security deposit for non-payment of rent

(i) Ensure that any legislative barriers or administrative hurdles to lease extensions are removed (so that a tenant and landlord could agree a rent waiver in return for a lease extension)

For landlords and tenants that sign up to the code of conduct, States and Territories have agreed to look at providing the equivalent of at least a three month land tax waiver and three month land tax deferral on application for eligible landowners, with jurisdictions to continue to monitor the situation.

Landlords must pass on the benefits of such moves to the tenants.

In cases where parties have signed to the code of conduct, the ability for tenants to terminate leases as mentioned in the National Cabinet Statement on 29 March 2020 will not apply.

Mediation will be provided as needed through existing State and Territory mechanisms.

Can a landlord evict someone during this crisis?

The Prime Minister announced on 29 March 2020 that the States and Territories have agreed to a six-month moratorium on eviction for non-payment of rent to be applied across commercial and residential tenancies impacted by severe rental distress due to coronavirus. However, the detail for implementation in NSW has not been released.

Right now, people need to proceed with the same legal processes as usual.

You need to still follow the procedures laid out in the Residential Tenancies Act 2010.

A renter cannot be evicted without an order from the NSW Civil and Administrative Tribunal (NCAT), and only the Sheriff can physically remove you.

If you have received a notice of termination, the Tenants Union are recommending individuals wait for NSW to implement measures before moving.

In the case of commercial rents for buildings owned by state governments, the states are being asked to waive, reduce or defer rents for small businesses.

Landlords and tenants not significantly affected by coronavirus are expected to honour their lease and rental agreements.

What relief is available to landlords who are adversely affected?

The Government has indicated they are releasing a package that will focus on incentives including waiving or deferring land tax for landlords who agree to pass on savings to tenants and a moratorium on rent increases.

The majority of banks are also offering relief to landlords who do not evict residential or commercial tenants who cannot pay rent because of COVID-19.

According to The Australian Banking Association, 98 per cent of businesses who have a loan with an Australian bank will now be covered by the six-month deferral of loan repayments. Certain banks are also now offering customers the option to defer home loan repayments for up to six months.

What if an individual is already in arrears?

Tenants can attempt to negotiate with their landlord – if they are already in arrears, it's better to be proactive.

With detail on the moratorium pending, it is hard to gauge what bearing the moratorium will have. Once again, landlords and tenants not significantly affected by coronavirus are expected to honour their lease and rental agreements.

Can my landlord continue with inspections, including open homes?

The NSW government has banned open house inspections where premises are up for sale or lease. Landlords and agents can still show a single party the premises after they have made an appointment with the tenant(s) for individuals.

However, they must take the following measures to protect tenants:

asking every person intending to attend an inspection if they have returned to Australia from overseas in the past 14 days and also if they are currently experiencing fever, sore throat, cough or shortness of breath (the current main symptoms associated with COVID-19). If the answer is yes, then the landlord or agent should tell the person that they cannot enter the house until they have self-isolated for 14 days or they have had a COVID-19 test that has come back negative for the virus
provide masks to make sure people are attending and who may be infected but are showing no symptoms can't unknowingly transmit the virus through air droplets
providing sanitiser/hand wash for people to use when attending an inspection and making sure they and the agent use it
ensure no one touches anything

I have lost income, what can I do?

Until the NSW Government introduces measures to implement the announced moratorium individuals can attempt to negotiate with your landlord about paying a reduced or no rent for a short period.

You cannot be evicted from your home for rent arrears without an order from the Tribunal, and only the Sheriff can physically evict you from your home.

I am supposed to be at Tribunal, should I still go? What will happen to my case?

NSW Civil and Administrative Tribunal has now announced changes to their procedures on their website. You can apply to have a phone hearing. Ensure you inform the Tribunal if you are in a higher risk category, for example, if you are immune suppressed or a carer for elderly relatives, so they can consider this when assessing and prioritising your request. While you can do a phone hearing on a mobile, in general landlines are preferred because of the reliability of the line.

NCAT: 1300 006 228

I'm in public or community housing. Will my rent go up due to increasing social support payments?

Renters in public and community housing have expressed concern that their rent may increase because pensioner and other income support payments are being raised. There are two payments, the Economic Support payments of $750 and Coronavirus Supplement of $550 per fortnight. These two payments are not assessable for calculating rents in public and community housing. Your rent should not increase.

Can real estate agents conduct auctions in a private setting with just the buyers?

No. As of midnight Wednesday, 25 March 2020, the Australian Government stated that all in-room and on-site real estate auctions must not continue.

If you require urgent help or advice, please contact Tenants Union of NSW https://www.tenants.org.au or LawAccess NSW on 1300 888 529.