Can NSW residential landlords evict COVID-19 impacted tenants?

Updated: Sep 16, 2020

Temporary legislative measures prohibit NSW residential landlords from terminating tenancies with certain tenants financially impacted by the COVID-19 pandemic.

See Part 6A of the Residential Tenancies Regulation 2019.

Who qualifies as a COVID-19 impacted tenant?

A tenant qualifies as a COVID-19 impacted tenant if the tenant is a member of a household impacted by the COVID-19 pandemic, where:

one or more rent-paying members of the household have lost their employment or income or have had a reduction in work hours or income because of the impact of the COVID-19 pandemic or have had to stop working or materially reduce their work hours because of illness from COVID-19, another member’s illness from COVID-19 or having to care for a family member’s illness from COVID-19; and
the above has resulted in the weekly household income (after tax, but including any government payments received by a rent paying member, e.g. JobKeeper payments) being reduced by at least 25%.

Can a landlord terminate a tenancy for non-payment of rent?

Until 15 October 2020 (or later, if extended), you cannot give a termination notice or apply to NCAT for a termination order for non-payment of rent or charges by a COVID-19 impacted tenant unless:

you have firstly participated, in good faith, in a formal rent negotiation process with the COVID-19 impacted tenant, facilitated by NSW Fair Trading; and
it is fair and reasonable in the circumstances for the tenancy to be terminated.

As a landlord, you can still apply to NCAT for a termination order on the ground of hardship. NCAT may order you to pay compensation to the tenant for the tenant’s loss of tenancy. See section 93 of the Residential Tenancies Act 2010.

Can a COVID-19 impacted tenant terminate a tenancy?

Until 26 September 2020, (or later, if extended), a COVID-19 impacted tenant can apply to NCAT for an order to terminate a tenancy if:

you refuse or fail to participate in a formal rent negotiation process, facilitated by NSW Fair Trading; or
you and the tenant participate in a formal rent negotiation process but cannot agree on a rent relief arrangement that would avoid financial hardship for the tenant.

What should a landlord do if a COVID-19 impacted tenant requests rent relief?

If you have a COVID-19 impacted tenant who requests rent relief, you should:

try and negotiate, in good faith, a mutually beneficial rent relief arrangement with the tenant (your tenant should provide evidence that he/she qualifies as a COVID-19 impacted tenant);
check if your insurance policies cover loss of rent during the COVID-19 pandemic;
(if you have a mortgage) try and negotiate mortgage repayment relief with your mortgagee, e.g. a temporary reduction or deferral of your mortgage repayments; and
check if you are eligible for any government support during the COVID-19 pandemic, e.g. land tax relief – see the Revenue NSW and Service NSW websites.

You could agree to a temporary rent waiver, reduction or deferral with your tenant or allow your tenant to break the tenancy early without penalty.

The financial circumstances of both parties should be taken into consideration.

Any agreement should be in writing and signed by both parties.

What if a tenant does not qualify as a COVID-19 impacted tenant?

A tenant who does not qualify as a COVID-19 impacted tenant is not protected by the temporary legislative measures. If such a tenant does not comply with the terms of his/her residential tenancy agreement (e.g. he/she does not pay the rent when due), the tenant will be in breach of the tenancy agreement and you will be entitled to enforce your rights as the landlord.

Are the normal notice periods for terminations extended?

Until 15 October 2020, (or later, if extended), if you terminate:

a fixed term tenancy;
a periodic tenancy; or
a tenancy for breach other than for non-payment of rent or charges,

you must give a minimum notice period of 90 days.

Can a landlord list a non-rent paying tenant on a residential tenancy database?

You cannot list a COVID-19 impacted tenant on a residential tenancy database for the non-payment of rent or charges.

For further information on landlords’ rights and obligations during the COVID-19 pandemic, see the NSW Fair Trading and Service NSW websites.