Am I a COVID 'impacted tenant'?

A COVID-19 'impacted tenant' is defined as a tenant in a household (meaning any tenants or other persons living together in the same residential premises) which has had a reduction or loss of work and/or income because of the pandemic AND as a result the weekly household income has been reduced by at least 25%.Your renting household needs to be able to demonstrate any 1 or more rent paying members of the household have:

  • lost employment or income as a result of the impact of the COVID-19 pandemic, or
  • had a reduction in work hours or income as a result of the impact of the COVID-19 pandemic, or
  • had to stop working, or materially reduce the member’s work hours, because of – the member’s illness with COVID-19, or another member of the household’s illness with COVID-19, or the member’s carer responsibilities for a family member ill with COVID-19. 

And as a result of the above factors the weekly household income has been reduced by at least 25% compared to the weekly household income for the household before the occurrence of any of the matters.

To be eligible for the provisions in the July 2021 Moratorium the period to compare the current weekly household income to show a reduction of at least 25% is the 4 weeks from the 29 May 2021. 

The 25% reduction in household income is assessed on income after tax, and is assessed on total household income – not just any one individual in the household. The ‘household’ is understood to be everyone living in the home contributing to rent, not just those listed on the tenancy agreement.

To show the household income has been reduced, you can provide evidence of pre and post-COVID-19 bank statements, payslips showing reduced income, letters from employers, medical certificates, business records showing proof of loss or closure or any other proof of income.

The Tribunal has a financial impact statement form which you can fill out carefully and attach any relevant material to show that you are a COVID-19 impacted tenant

If you ARE a COVID-19 'impacted tenant'...

Have you recently been affected by the COVID-19 pandemic?

From 14th July 2021 to the 11th November 2021 if you are a COVID-19 'impacted tenant', have notified the landlord you are an impacted tenant and have continued to pay at least 25% of your weekly rent  your landlord is prevented from seeking termination of your tenancy for rent arrears. To be eligible for the July 2021 Moratorium your reduction of 25% of your weekly household income must be compared to the average weekly household income for the 4 weeks from the 29 May 2021. 

 

Have you accrued rental arrears before 26/3/2021?

If so, and your household income reduced by at least 25% per week because of COVID-19 in the period, 15 April 2020 to 26 March 2021, then there were conditional transitional measures in place up until 26 September 2021.

As an 'impacted tenant' with COVID-induced arrears in the prescribed period your landlord was prohibited from giving you a 90 days no grounds termination notice (s85), or a termination notice for rental arrears, or taking you to the Tribunal for termination because of non-payment of rent unless there was an agreement to a repayment plan or there had been good faith repayment negotiations facilitated by Fair Trading.

The protections were as follows:

A landlord must not have served you a notice of termination or applied to the Tribunal for termination orders based on arrears accrued during the period, 15 April 2020 to 26 March 2021, if —

  (a) a repayment plan was agreed for the arrears, and

  (b) you have complied with the repayment plan.

In practice, this means that your landlord was prohibited from taking you to the Tribunal for the  arrears unless you had failed to pay two consecutive payments under the agreement. If you had missed two or more consecutive payments by the relevant deadline under the repayment plan then your landlord could only evict you if it is 'fair and reasonable' in the circumstances (see COVID-19 Guide: Eviction).

If you are unsure about whether you had a valid repayment plan with your landlord you can contact your local Tenants' Advice and Advocacy Service for advice. 

If you are an 'impacted tenant' and you did not have a repayment plan in place for arrears, then your landlord was restricted from serving you with a notice of termination or applying to the Tribunal for termination for arrears accrued during the prescribed period UNLESS:

  (a) Your landlord participated in good faith in a formal arrears repayment negotiation process about a repayment plan for the arrears, and

  (b) it is fair and reasonable in the circumstances

These transitional measures ended on 26 September 2021 but if you received a relevant termination notice or your landlord commenced Tribunal proceedings in contravention of these provisions between 27 March 2021 and 26 September 2021 then these definitions and transitional rules apply.

This flowchart from NSW Fair Trading sets out the process for tenants and landlords under these transitional measures during this period.

If you are NOT a COVID-19 'impacted tenant'...

Rent arrears and eviction

If you do not qualify as a COVID-19 'impacted tenant' – for example your household income is reduced by 20% and not the 25% as defined in the legislation – you may still ask the landlord to consider a repayment plan for arrears. If the landlord or agent ignores your request or won't enter into negotiations you may be able to access the NSW Fair Trading Dispute Resolution process

While the restrictions against eviction for rent arrears outlined above will not apply, the Tribunal still has discretion about whether to proceed with rent arrears evictions. Each case will be assessed on its merits and will require the tenant to provide evidence of any additional hardship.

See also: