Temporary legislative measures are in place to protect certain NSW residential 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?
You qualify as a COVID-19 impacted tenant if you are 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 COVID-19 impacted tenant terminate a tenancy?
Until 26 September 2020 (or later, if extended), if you are a COVID-19 impacted tenant, you can apply to NCAT for an order to terminate your tenancy if:
your landlord refuses or fails to participate in a formal rent negotiation process, facilitated by NSW Fair Trading; or
you and your landlord participate in a formal rent negotiation process but cannot agree on a rent relief arrangement that would avoid financial hardship for you.
NCAT may order you to pay compensation of up to 2 weeks rent to the landlord. See Part 13 of the Residential Tenancies Act 2010.
If you are a residential tenant under a fixed term tenancy agreement, you can still apply to NCAT for a termination order on the ground of hardship (see section 104 of the Residential Tenancies Act 2010). NCAT may order you to pay compensation to the landlord for the landlord’s loss of tenancy (not exceeding the break fee amount).
What should a COVID-19 impacted tenant do?
If you are a COVID-19 impacted tenant, you should contact your landlord as soon as possible to try and negotiate a mutually beneficial rent relief arrangement. You should provide evidence that you qualify as a COVID-19 impacted tenant. For example:
payslips/bank statements showing your reduction in income;
confirmation from your employer of your loss of employment/reduced work hours; or
confirmation from Centrelink of your eligibility for government financial support.
You should try and negotiate a temporary rent waiver, reduction or deferral with your landlord or see if your landlord will agree to you breaking your 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.
If your circumstances change and you no longer qualify as a COVID-19 impacted tenant, you should inform your landlord immediately.
What if a tenant does not qualify as an impacted tenant?
If you do not qualify as a COVID-19 impacted tenant, you are not entitled to the protection provided by the temporary legislative measures and you will be in breach of your tenancy agreement if you do not comply with its terms, e.g if you do not pay the rent when it is due.
Can a landlord list a tenant on a residential tenancy database?
If you are a COVID-19 impacted tenant, a landlord cannot list you on a residential tenancy database for the non-payment of rent or charges.