The NSW Government has implemented an Evictions Moratorium – for some tenants.
This is a public health measure to minimise social movement during the COVID-19 pandemic.
Restrictions on evictions for rent arrears until 15 October
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.
However, until 15 October there are restrictions in place for evictions for rent arrears where the household is in financial hardship due to COVID-19 – see the eligibility criteria in 'Am I a COVID-19 'impacted tenant'?'
A landlord is able to apply to the NCAT 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 mediation process. 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.
A landlord can only seek to terminate the agreement 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.
- 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 15 October.
If 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; and
- it is fair and reasonable in the circumstances to evict you.
Applying to NCAT 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'. 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 another reason see 'Eviction for other reasons' below to check for any relevant changes to notice periods.
- 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 Fair Trading Dispute Resolution process. 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 NSW Civil and Administrative 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.
- What if I am not yet behind in my rent?
You do not have to be in rental arrears to access the Fair Trading Dispute Resolution process.
You should get in touch with the landlord or agent as soon as you are able to and request to begin negotiations on a fair rent reduction before you get behind in your rent. If you are not able to reach an agreement you can then apply for Fair Trading’s assistance with mediating further negotiations via their formal rent negotiation process.
See COVID-19 Guide: Rent, rent reduction and negotiation to prepare for negotiation.
- Eviction for other reasons
The COVID-19 changes are mostly limited to termination for rent arrears. The landlord can still terminate your agreement and evict you if they have other reasons, however for some terminations the notice period required has been extended.
Extension of notice periods
There is an extension of notice periods to at least 90 days for evictions on a range of other grounds for notices received from 15 April. The following other 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).
Can the landlord terminate for other reasons?
Landlords will still be able to apply to the Tribunal to terminate an agreement (to evict the tenant) where the landlord can show they are suffering genuine hardship. The notice period for an eviction on the basis of 'sale of home' will also remain unchanged.
The 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 legal 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.
Also check out this video on rent reductions and evictions by Inner City Tenants Advice & Advocacy Service.