What are the protections under the previous measures?
There are two significant protections under the previous COVID-19 tenancy measures. You should check if they still apply to you (See COVID 19 Guide: Do the Old COVID-19 Tenancy Protections Apply to Me?). These only apply to you if a Tribunal application for termination was commenced against you or you received a notice of termination for arrears before 13 February 2022.
The landlord must negotiate an arrears repayment plan with you before they can give you a termination notice (for arrears only). If your landlord did not negotiate with you and they applied to the Tribunal for termination of your tenancy for arrears then you should argue that their Tribunal application is invalid. Contact your local Tenants Advice and Advocacy Service.
If your landlord did negotiate a repayment plan with you and you complied with this plan, then your landlord cannot evict you for arrears. However if you accrued more arrears (that were not part of the arrears repayment plan) after 11 November 2021, your landlord could evict you for arrears.
If there is a termination application against you in the Tribunal which commenced before or on 12 February 2022, and you meet the definition of COVID-19 impacted tenant (see the 4 conditions at COVID 19 Guide: Do the Old COVID-19 Tenancy Protections Apply to Me?) then the Tribunal must consider whether it is ‘fair and reasonable in the circumstances’ for you to be evicted (clause 41CA of the Residential Tenancies Regulation 2019).
In deciding whether eviction is ‘fair and reasonable in the circumstances’ the Tribunal must consider the following factors:
- the steps taken by the landlord and tenant to negotiate a repayment plan,
- any payments made by the impacted tenant towards the arrears,
- the nature of any financial hardship experienced by the landlord or tenant, including the general financial position of each party,
- the availability and affordability of reasonable alternative accommodation for the tenant,
- whether the landlord has applied for any financial assistance or land tax rebates offered by the State that is available to landlords who reduce rent and, if so, whether the landlord has received any financial assistance or land tax rebate,
- any special vulnerability of the tenant.
The Tribunal’s consideration is not limited to the abovementioned factors.
(This example is continued from COVID 19 Guide: Do the Old COVID-19 Tenancy Protections Apply to Me?)
We know from the earlier part of this example that Thomas meets the definition of “COVID-19 impacted”, and because his landlord applied for termination of his tenancy on or before 12 February 2022, the old protections still apply to Thomas. Thomas had previously agreed to a repayment plan with his landlord but his landlord is now seeking termination in the Tribunal regardless of Thomas’ efforts in making good his arrears.
Thomas should start preparing for his case before the Tribunal to argue why he should be allowed to stay in his home. Below are some strategies that Thomas should consider:
- Check his repayment plan and make sure that he has complied with it (he has not missed two or more consecutive repayments) and prepare that document for the Tribunal’s consideration.
- Get a copy of his rent ledger (a landlord must provide a rent ledger in 7 days where this is requested in writing) which will show that he has continued to pay at least 25% of his rent
- Consider seeking advice from a financial counselor. See the Financial Rights Legal Centre website to find a local financial counseling service.
- Complete a Financial Impact Statement form from the Tribunal which Thomas should complete to establish that he is COVID-19 impacted
- Check if the termination notice is valid –
- the notice must be in writing,
- at least 14 days’ notice must be provided and
- check the arrears stated in the termination notice are not for the period covered by the repayment plan (if Thomas has been complying with the repayment plan and has no further arrears then the notice may be invalid).
- Contact his local Tenants’ Advice and Advocacy Service for assistance
- If there are new arrears accrued outside the Moratorium Period, then try to negotiate a new repayment plan with the real estate agent or landlord.