Protections for COVID 'impacted tenants'
From 27 March 2021, landlords are prevented from serving a notice of termination or making an NSW Civil and Administrative Tribunal (NCAT) application against a tenant for rent arrears if an ‘impacted tenant’ has agreed to a ‘repayment plan’ with their landlord/agent, and has complied with the terms of the plan. The landlord cannot take you to the Tribunal unless you have failed to make 2 consecutive payments under the repayment plan.
A Repayment Plan is defined as: a plan to pay back the arrears that specifies the amounts to be paid and the times at which the payments are due.
A landlord must not serve you a notice of termination or apply to the Tribunal 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.
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 termation 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
There are a number of things the Tribunal will consider, when deciding if termination of the tenancy is ‘fair and reasonable’ in the circumstances. These factors include but are not limited to:
(a) the steps taken by the landlord and impacted tenant to negotiate a repayment plan,
(b) the repayments made by the impacted tenant,
(c) the nature of any financial hardship experienced by the landlord or impacted tenant,
(d) the availability and affordability of reasonable alternative accommodation for the impacted tenant, and
(e) any special vulnerability of the impacted tenant.
If the landlord has not acted in good faith during any formal negotiations, the Tribunal may decide not to make a termination order
Section 85 notices of termination
If you have accrued arrears during the Moratorium Period, your landlord may not circumvent the protections outlined above by giving you a no-fault termination notice under section 85 of the Residential Tenancies Act 2010. Such action is prohibited for 6 months, unless the landlord can demonstrate to the Tribunal that it is fair and reasonable.
Eviction for other reasons
The COVID-19 tenancy protections are limited to termination for rent arrears for ‘impacted tenants'. This means that your landlord can still terminate your tenancy 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
Note: If tenants received notices of termination, or if were involved in Tribunal proceedings on or before 26 March 2021, then these notices and proceedings will continue to be subject to the laws of the Moratorium Period. For example, if you received a notice of termination on or before 26 March 2021, then the following termination reasons require at least 90 days notice:
- 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)
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. The Tribunal 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, the Tribunal 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 and Advocacy 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. Even after the Tribunal has made a termination order, you may still save your tenancy if your termination was for rent arrears only and:
- the Tribunal has not found that you have ‘frequently failed to pay’ the rent or water usage charges, and
- the Sheriff hasn’t enforced the warrant for possession yet.
If you have received a notice of termination for any reason, we recommend you get in touch with your local Tenants' Advice and Advocacy 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 (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 and Advocacy Service
A landlord must not give a termination notice under section 85 to an impacted tenant who accrued arrears during the moratorium period unless it is fair and reasonable in the circumstances.
Link2home is an information and referral service to assist homeless people and those at risk of homelessness – call 1800 152 152.
Aboriginal Hostels Ltd provides temporary accommodation services to Aboriginal and Torres Strait Islander people.
See also Legal Aid NSW's COVID-19 factsheet on Homelessness or at risk of homelessness.