​18. Property

A. Leases

This section covers both residential leases and retail (commercial) leases.

i.  Legislation

Victoria:
Residential Tenancies Act 1997 (Vic) amended by:  
Made under the Residential Tenancies Act:
COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic):
  • Part 2.2: regulations temporarily modifying law relating to retail leases and non-retail commercial leases and licences.

Made under the COVID-19 Omnibus (Emergency Measures) Act:
New South Wales:
COVID-19 Emergency Response Act 2020 (NSW):
  • Part 7: Retail leases and other prescribed leases.
  • Part 8: Residential tenancies and rooming accommodation.
 
Made under the COVID-19 Emergency Response Act 2020 (NSW):  
Retail Leases Act 1994 (NSW) amended by the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW).
 
Made under the Retail Leases Act 1994 (NSW):  
Residential Tenancies Act 2010 (NSW) amended by:
  • COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW); and
  • COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Act 2020 (NSW):
    • ​Item [1] of the amendments by the COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Act 2020 (NSW) insert provisions into Pt 13 of the Residential Tenancies Act 2010 (NSW) (the Act) to: (a) enable NCAT, on application by a tenant who is a member of a household financially impacted by the COVID-19 pandemic, to terminate a residential tenancy agreement if satisfied that: the tenant has asked the landlord to formally negotiate the rent payable under the agreement and the landlord has not responded to the request within seven days, has refused to negotiate the rent, or has agreed to negotiate but the negotiations have not started within seven days of the landlord’s agreement; or the tenant and landlord are not able, after negotiating in good faith, to reach an agreement about the rent that would avoid financial hardship for the impacted tenant; and (b) if NCAT makes a termination order, require the tenant to pay to the landlord compensation of an amount equal to two weeks' rent.
    • Item [2] repeals Pt 13 of the Act on 26 September 2020 or a later day (no later than 26 March 2021) prescribed by the regulations.
    • Item [4] of the proposed amendments extends the application of the Landlord and Tenant Regulation 2015 to certain premises to which the repealed Landlord and Tenant (Amendment) Act 1948 continues to apply. The Landlord and Tenant Regulation 2015 is repealed by Sch 1.18 to the Act (see below). Item [4] also continues the application of the Landlord and Tenant Act 1899 (NSW) to the extent necessary for the continuation of the Landlord and Tenant (Amendment) Act 1948. Section 1D of the Landlord and Tenant Act 1899 (NSW)  provides for the repeal of that Act five years after the commencement of that section (which was 29 June 2015).
    • Item [3] makes a consequential amendment.
 
Made under the Residential Tenancies Act 2010 (NSW):
Landlord and Tenant Regulation 2015 (NSW) repealed by the COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Act 2020 (NSW).

Queensland:
Made under the COVID-19 Emergency Response Act 2020 (Qld) and the Residential Tenancies and Rooming Accommodation Act 2008 (Qld): ​
Tasmania:
Made under COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020 (Tas):
COVID-19 Disease Emergency (Commercial Leases) Act 2020 (Tas).
​
South Australia:
COVID-19 Emergency Response Act 2020 (SA):
  • Section 7: Provisions applying to commercial leases.
  • Section 8: Provisions applying to residential tenancies.
  • Section 9: Provisions applying to residential parks.
 
Made under the COVID-19 Emergency Response Act 2020 (SA):
Western Australia:
Residential Tenancies (COVID-19 Response) Act 2020 (WA).
 
Residential Tenancies Act 1987 (WA) amended by the Residential Tenancies (COVID-19 Response) Act 2020 (WA).
 
Commercial Tenancies (COVID-19 Response) Act 2020 (WA):
Australian Capital Territory:
Leases (Commercial and Retail) Act 2001 (ACT) amended by:
Made under the Leases (Commercial and Retail) Act 2001 (ACT):
Residential Tenancies Act 1997 (ACT) amended by:  
Northern Territory:
Residential Tenancies Act 1999 (NT) amended by:  
Made under the Residential Tenancies Act 1999 (NT):  
Business Tenancies (Fair Dealings) Act 2003 (NT) amended by the Tenancies Legislation Amendment Act 2020 (NT).

ii.  Case law

​Measures introduced to restrict the capacity of owners of rented premises to evict tenants in possession during the pandemic may give rise to questions about the interaction of such measures with existing legislation governing the tenancy.
 
In Catalyst Provisional Lending Pty Ltd v Dick-Telfar [2020] NSWSC 324, the NSW Supreme Court refused to stay a writ of possession by a mortgagee, where the application had been made on the basis of anticipated regulations under the Residential Tenancies Act 2010 (NSW), which might have prohibited recovery of the relevant premises. Although a power to make such regulations had been inserted into the Residential Tenancies Act (by the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW)), relevant regulations had not been made at the time of the application ([6]-[9]). In refusing to grant a stay, the Court observed that it was unclear whether regulations made under the relevant regulation-making power could extend to limit actions by mortgagees, but that it was clear that such regulations would not provide relief to the defendants ([9]). Further, although one of the defendants was said to be exhibiting flu-like symptoms and to be in self-isolation, in circumstances where there was no evidence that the defendants would be unable to secure alternative accommodation, the Court was not satisfied that there was a proper basis for granting the stay sought ([10]-[11]).
 
While regulations were subsequently made under the Residential Tenancies Act for the purposes of preventing recovery of rented premises during the pandemic, the NSW Court of Appeal has confirmed that those regulations have no relevant operation in respect of tenancies terminated by NCAT prior to the regulations being made, even where the tenant has remained in possession of the rented premises: Herbert v New South Wales Land and Housing Corporation [2020] NSWCA 74, [14].