This is a public health measure to minimise social movement during the COVID-19 pandemic.
Up until 13 June there was a 60 day stop on evictions for rent arrears for COVID-19 'impacted tenants'. The 60 day stop on evictions has now ended.
A landlord is able to apply to the Tribunal to evict an 'impacted tenant' for rental arrears, but the landlord must be able to demonstrate they have taken part in 'good faith' rent reduction negotiations with the tenant, including through the formal negotiation process faciltated by NSW Fair Trading. If the landlord and tenant are unsuccessful at reaching a mutually agreed outcome initially, either the tenant or landlord can seek assistance from Fair Trading to help formally mediate further negotiations. See COVID-19 Guide: Rent negotiations
A landlord can only seek to terminate the tenancy agreement of an 'impacted tenant' after formal negotiations via the Fair Trading dispute resolution process have failed. The Tribunal has discretion in each case to assess whether it is fair and reasonable to evict in the circumstances.
- Am I a COVID-19 '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
See also 'Eligibility' in Six month moratorium on residential tenancy evictions during COVID-19 (NSW Fair Trading website).
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. This includes any government assistance, such as the new job keeper payments. The ‘household’ is understood to be everyone living in the home contributing to rent, not just those listed on the tenancy agreement.
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
- I am a COVID-19 'impacted tenant' ...
If you are a COVID-19 'impacted tenant' and are unable to meet your rental payments, the evictions moratorium measures in NSW restrict the ability of the landlord to evict you for rent arrears until 26 March 2021.
If you are a COVID-19 'impacted tenant' and your landlord wants to evict you they must make an application to the NSW Civil and Administrative Tribunal (NCAT) to have the tenancy ended. They must be able to demonstrate:
- they have participated in 'good faith' in the formal rent negotiation process overseen by NSW Fair Trading (see COVID-19 Guide: Rent negotiations); and
- it is fair and reasonable in the circumstances to evict you.
Applying to the Tribunal is the only way a landlord can evict you
The Tribunal must consider whether the eviction is 'fair and reasonable in the circumstances', taking into account factors including:
- advice from Fair Trading about the landlord and your participation in formal 'good faith' rent reduction negotiations,
- whether the tenant has been making any payments towards rent,
- the parties' financial circumstances including any hardship faced,
- health concerns or any other vulnerabilities of the impacted tenant
- relevant public health orders and/or objectives
In order for these protections to apply to you, you must be an 'impacted tenant' and the basis of the termination must be solely for the non-payment of rent or other tenancy charges (e.g. water usage, utility bills).
To work out if you are an 'impacted tenant', see COVID Guide: Am I a COVID-19 'impacted tenant'?
If you received a notice for a reason other than the non-payment of rent or other charges see 'Eviction for other reasons' below.
- I am NOT a COVID-19 'impacted tenant'...
Rent arrears and eviction
If you do not qualify as a COVID-19 'impacted tenant' (see COVID-19 Guide: Am I an 'impacted tenant'?) – for example your household income is reduced by 20% – you may still ask the landlord to consider a rent reduction. 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. NSW Fair Trading will consider an application for assistance from a tenant whose household income was reduced by less than 25%.
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.
Eviction for other reasons
If you are not a COVID-19 'impacted tenant' and receive an eviction notice for another reason see 'Eviction for other reasons' below to check for any relevant changes to notice periods.
- Eviction for other reasons
The COVID-19 tenancy protections are mostly limited to termination for rent arrears for ‘impacted tenants'. This means that your landlord can still terminate your agreement and evict you if they have other reasons, for example if the landlord requires vacant possession at the end of the fixed term or if they allege you have damaged the property. Also, your landlord can still terminate your tenancy without grounds if they provide the correct notice period for the termination: see F.
For some terminations, the notice period required has been extended to give people more time to find a new premises during the health crisis. If you receive a termination notice between 15 April 2020 and 26 March 2021 see 'Extension of notice periods' below for information about the extended notice periods during the moratorium period.
- Extension of notice periods
There is an extension of notice periods to at least 90 days for evictions on a range of termination grounds for notices received between 15 April 2020 until 26 March 2021. The following termination reasons require at least 90 days notice during the moratorium period:
- end of fixed-term 'no grounds' evictions (section 84),
- termination for other breaches (section 87, for breaches apart from rental arrears),
- evictions for longer-term tenancies, i.e. a tenancy of 20 years or more (section 94).
Note: If a termination notice is given for the end of fixed term under section 84, the tenant remains liable for rent until the last day of the fixed term. You may seek to negotiate with the landlord to waive rent before the end of the fixed term in return for you providing vacant possession at an earlier date. Any such arrangement should be in writing, so that it is enforceable.
- Can the landlord terminate due to hardship?
Your landlord will still be able to apply to the Tribunal to terminate an agreement (to evict the tenant) where the landlord can show that they are suffering genuine hardship. NCAT may grant such an order if satisfied that, in the special circumstances of the case, the landlord would suffer undue hardship if the tenancy agreement was not terminated. The Tribunal will also consider the impact that termination would have on the tenant.
If the Tribunal terminates a tenancy agreement on the basis of hardship to the landlord, NCAT may also order the landlord to pay compensation to the tenant for the tenant’s loss of tenancy. If you receive a termination notice on the ground of hardship to the landlord contact your local Tenants' Advice Service.
- Eviction - your rights
No eviction without a court or Tribunal Order
For any termination of tenancy, your landlord will be required to follow the process for termination set out in the Residential Tenancies Act 2010. You cannot be evicted without an order from the Tribunal, and only the Sheriff can physically remove you.
If you have received a notice of termination for any reason, we recommend you get in touch with your local Tenants' Advice Service for free tenancy advice as soon as possible.
If you are facing financial difficulties, and especially if you think you will fall into arrears, you should initiate negotiations with the landlord to reduce your rent. It's better to be proactive.
If your landlord/agent acts to end the tenancy directly after you have tried to enforce your legal rights (such as asking for repairs), the Tribunal may find this to be a retaliatory eviction. The tribunal may declare a termination notice to have no effect and/or refuse to make a termination order.
You can apply to the Tribunal for an order that the notice was retaliatory. You must apply within 30 days of getting a termination notice under section 85 of the Residential Tenancies Act 2010 (NSW) (end of periodic agreement) or within 14 days for other notices.
If the landlord/agent has applied to the Tribunal for a termination order, you should attend the hearing and argue that the application was retaliatory.
If you think the termination notice you received from your landlord was retaliatory, we recommend you get in touch with your local Tenants' Advice Service