KEY TAKE OUTS:
- The NSW state government has just passed emergency measures regarding changes to the retail, commercial and residential leases.
- The changes proposed change the enforcement rights of landlords against tenants for a month period.
- The amendments are still awaiting royal assent at the time of this article.
Following on from our previous blog regarding tenants and landlords, the State government of NSW has on 24 March 2020 passed the COVID-19 Legislation Amendment (Emergency Measures) Bill 2020. The new legislation has made some notable changes to the way in which retail and residential leases and frankly any kind of lease [but please contact us for more details if you are not sure] covered by any Act will operate in the current climate.
The Bill is currently awaiting royal assent before the changes will commence.
In essence, the new amendments are enacted for approximately six (6) months and are as follows:
- Landlords are unable to make recovery possession of a premises from their tenants;
- Landlords, proprietors or operators of a community are unable to terminate a residential tenancy agreement, retail, commercial lease or any occupancy agreement or site agreement;
- They will regulate or prevent the enforcement of landlord rights;
- Exempting a tenant, resident or homeowner or a class of tenants from the operation of provisions or agreements relating to a premises.
Together with the recent changes in the Bankruptcy Act, the landscape for landlords and tenants has definitely changed.
For a complete summary of the changes we refer you to the following enacted changes:
Residential Leases:
The Bill incorporates an additional provision into the Residential Tenancies Act 2010 (NSW) which allows for provisions to respond to public health emergencies caused by the COVID-19 Pandemic.
The following responses are provided for in the additional provision:
- Landlords are unable to recover possession of a premises from their tenants;
- Landlords, proprietors or operators of a community are unable to terminate a residential tenancy agreement, occupancy agreement or site agreement;
- To regulate or prevent the enforcement of landlord rights;
- Exempting a tenant, resident or homeowner or a class of tenants from the operation of provisions or agreements relating to a premises.
The above responses are also made relevant to the following Acts:
- Boarding Houses Act 2012
- Residential (Land Lease) Communities Act 2013;
- Residential Tenancies Act 2010;
- Any Act relating to the leasing of premises or land for residential purposes.
Additionally, the new provision is not to operate indefinitely. The time frame on the abovementioned responses are as follows:
- 6 months after the day which the regulation commenced
- A day prior to the 6 months after the day the regulation commenced, that is decided by a resolution of either house of Parliament.
Retail Leases
It is important to note that the amendments to the Retail Leases Act 1994 (NSW) provides for the same above responses to be applied in respect of retail leases.
Take away message!
It is important to note that there is some uncertainty surrounding the legislative change. The amendment notes that ‘regulations under any relevant Act may provide for the following matters…” (emphasis added). This would imply that each provision in legislation affected by the Bill, will need to enact each regulation as they see fit.
Sit tight, we believe more certainty surrounding leases will come to light in the upcoming weeks.
ABOUT ADRIANA CARE:
Adriana is the Managing Partner for Coutts Lawyers & Conveyancers. She acts for large commercial financial institutions in relation to corporate governance, and the provision of retail and wholesale credit and funding facilities for both the commercial and consumer market.
She also acts for a range of ADIs, finance companies, vendor introduces and equipment lessors. She acts for a number of franchisor and franchisees, as well as small property developers, builders and commercial property leases and debt recovery. Adriana has also worked in the fields of insolvency, commercial disputes and litigation and occupational.
Adriana Care
Managing Partner
adriana@couttslegal.com.au
1300 268 887
This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.
