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 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 for the household 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.

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 September 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 has reduced by at least 25% per week because of COVID-19 in the period 15 April 2020 to 26 March 2021, you are considered an "impacted tenant" and your landlord is prohibited from giving you a 90 days no grounds termination notice (s85), or giving you a termination notice for rental arrears, or taking you to the Tribunal for termination because of non-payment of rent unless they have agreed to a repayment plan or have participated in good faith repayment negotiations facilitated by Fair Trading. 

The protections are as follows:

A landlord must not serve you a notice of termination or apply to the NSW Civil and Administrative Tribunal (NCAT) for termination for arrears accrued during the Moratorium Period 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 cannot take you to the Tribunal for the arrears unless you have failed to pay 2 consecutive payments under the agreement. If you have missed two or more consecutive payments by the relevant deadline under the repayment plan then your landlord can only evict you if it is 'fair and reasonable' in the circumstances (see COVID-19 Guide: Eviction).

If you are unsure of whether you have 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 have no repayment plan in place for arrears, then your landlord must not serve you with a notice of termination or apply to the Tribunal for termination for arrears accrued during the Moratorium Period UNLESS:

  (a) Your landlord has 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

The first step when initiating negotiations for a repayment plan will involve demonstrating your eligibility as an 'impacted tenant' 

To show your income has been reduced, you can provide pre and post-COVID-19 bank statements, payslips showing reduced income, letters from your employer, 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' - this flowchart from NSW Fair Trading sets out the process for tenants and landlords under these new measures.

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: