The Residential Tenancies (Amendment) COVID-19 Regulation 2020 (Regulation) introduced changes to residential tenancies in New South Wales on 15 April 2020. The Regulation was intended to operate for six months but has recently been extended to operate until 26 March 2021 (relevant period).
The Regulation generally prohibits a landlord, during the relevant period, from giving a tenant who has been impacted by the COVID-19 pandemic a termination notice for non-payment of rent, water usage charges or utility charges payable by the tenant or applying to the Tribunal for a termination order on the grounds of non-payment of rent, water usage charges or utility charges payable by the tenant.
However, the general prohibition is qualified. A landlord may give a termination notice or apply to the Tribunal for a termination order if the landlord can satisfy two tests.
Firstly, the landlord must have participated, in good faith, in a formal rent negotiation process with the impacted tenant and secondly, it must be fair and reasonable in the circumstances for the landlord to give the termination notice of apply for the order.
If a notice is given, the usual notice period prescribed under the Residential Tenancies Act 2010 has been amended so that a notice must specify a termination date that is not less than 90 days.
For the purposes of determining whether it is fair and reasonable in the circumstances for the landlord to give a termination notice or apply for a termination order, the Tribunal may have regard to the following (non-exhaustive) matters:
(a) any advice provided by NSW Fair Trading relating to the participation of the landlord or impacted tenant in the formal rent negotiation process, including whether the landlord or impacted tenant refused, or refused to make, a reasonable offer about rent;
(b) whether the impacted tenant has continued to make any payments towards the rent;
(c) the nature of any financial hardship experienced by the landlord or impacted tenant, including the general financial position of each party;
(d) the availability and affordability of reasonable alternative accommodation for the impacted tenant;
(e) any special vulnerability of the impacted tenant; and
(f) the public health objectives of—
(i) ensuring citizens remain in their homes, and
(ii) preventing all avoidable movement of persons.
