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COVID & renting, after 11 November 2021

Infosheet published September 2021

In New South Wales there have been quite a few different changes to legal protections for private tenants who have been financially impacted by COVID-19. This infosheet specifically deals with the protections that will come into effect for 3 months from 12 November 2021 – 12 February 2022 as they relate to the Moratorium Period 14 July 2021 – 11 November 2021 and impacted tenants who have accrued arrears over this Moratorium Period. For more general information, see our Renters' Guide to COVID-19.

 

Eligibility for protection:
Have I recently been impacted by COVID-19?

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% compared to the weekly household income for the household from the 4 weeks 29 May 2021 – 26 June 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. 

Your renting household must demonstrate that, any 1 or more rent paying members of the household have:

  1. lost employment or income as a result of the impact of the COVID-19 pandemic, or 
  2. had a reduction in work hours or income as a result of the impact of the COVID-19 pandemic, or
  3. had to stop working, or materially reduce the member’s work hours, because of a member’s illness with COVID-19, or a 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 from the 4 weeks 29 May 2021 – 26 June 2021.

To prove eligibility, it is vital for tenants to show evidence that their income reduced by 25% compared to their income from the 4 weeks 29 May 2021 – 26 June 2021 and before the occurrence of any of the pandemic-related matter/s outlined at (1.) to (3.) above.

In Serious v Barlow; Barlow v Serious [2020] NSWCATCD 3, the NSW Civil and Administrative Tribunal (NCAT) determined that the tenant was not an ‘impacted tenant’.

In this case, the tenants satisfied the Tribunal that they had no income as a result of the impact of the COVID-19 pandemic, but the tenants were not successful in satisfying the Tribunal that their income had decreased by 25% compared to before the pandemic. The parties’ evidence had included the tenant’s bank statements, but these did not show any prior income. The Tribunal found that without any evidence of pre-pandemic income, the tenants did not meet the statutory definition of an ‘impacted tenant’. The result of not meeting this definition was that protections introduced to address the impact of the COVID-19 pandemic did not apply to those tenants, and their tenancy was able to be terminated due to the arrears of rent. 

Evictions 

Generally, if rent, water usage charges and/or utility charges under a tenancy agreement remain unpaid for 14 days or more, landlords can issue a non-payment termination notice to tenants.

The current eviction Moratorium Period between 14 July 2021 – 11 November 2021, protects COVID-19 impacted tenants’ from eviction for failure to pay rent if you have notified the landlord that you are an impacted tenant and have continued to pay at least 25% of your weekly rent.

Importantly, if tenants received notices of termination, or if they were involved in Tribunal proceedings on or before 11 November 2021, then these notices and proceedings will continue to be subject to the laws during that time.

From 12 November 2021, ‘impacted tenants’ who ‘accrued rent’ arrears during the Moratorium Period will have new protections – landlords will only be able to terminate tenancies of ‘impacted tenants’ if the termination is ‘fair and reasonable’ in the circumstances, and:

  1. landlords have participated in good faith formal negotiations to enter a repayment plan for arrears, or
  2. tenants have failed to comply with a repayment plan for arrears on two or more consecutive occasions.

Proving that I am a recent COVID-19 ‘impacted tenant’ 

The first step when initiating negotiations for an arrears repayment plan, will involve demonstrating eligibility.  

To show your income has been reduced in the current relevant Moratorium Period, you can provide pre- bank statements, letters from your employer or any other proof of income for the 4-week period, 29 May 2021 – 26 June 2021.

The Tribunal has a financial impact statement form which you can fill out and attach any relevant material.

‘Accrued arrears’

Only arrears accrued during the current relevant Moratorium Period by an ‘impacted tenant’, may be subject to a repayment plan under the new laws.

Arrears accrued before 14 July 2021 or after 11 November 2021, will not be covered by the new laws concerning repayment plans. For guidance on arrears accrued before 14 July 2021 or after 11 November 2021, please see the Renters' Guide to COVID-19 and Factsheet 5: Rent arrears.

Repayment plans

A repayment plan is defined as a plan to pay back accrued arrears that specifies the amounts to be paid and the times at which the payments are due.

From 12 November 2021 – 12 February 2022 landlords are prohibited from serving a termination notice or making a Tribunal application against a tenant for rent arrears accrued during the current relevant Moratorium Period 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 agreement. 

If an ‘impacted tenant’ has missed two or more consecutive payments by the relevant deadline under the repayment plan then the landlord can only evict if it is ‘fair and reasonable’ in the circumstances. 

If an impacted tenant does not have a repayment plan then the landlord must not act to terminate the tenancy unless the termination is fair and reasonable in the circumstances and the landlord has participated in good faith in a ‘formal arrears repayment negotiation process’ (facilitated by NSW Fair Trading). You can apply for the formal arrears repayment negotiation process by filling in the Application for Rent Negotiation form and submitting it through the usual NSW Fair Trading complaints process

Tenants should keep written records of any repayment plans, proof of repayments made and request updated rent ledgers.

Note: If you have an existing agreement to repay arrears or to waive or defer your rent payments due to COVID-19 – stick to it. These laws do not affect any such agreement you have with your landlord. 

What is ‘fair and reasonable’?

There are a number of things the Tribunal will consider, when deciding whether the making of a termination order is ‘fair and reasonable’.  These factors include but are not limited to:

  1. the steps taken by the landlord and impacted tenant to negotiate a repayment plan,
  2. the repayments made by the impacted tenant,
  3. the nature of any financial hardship experienced by the landlord or impacted tenant, 
  4. the availability & affordability of reasonable alternative accommodation for the impacted tenant, and
  5. 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  
  6. any special vulnerability of the impacted tenant.

Negotiation

If you have accrued arrears over the Moratorium Period and do not already have a repayment plan, you should negotiate one with your landlord and/or use the formal arrears repayment negotiation process by Fair Trading NSW.

The formal arrears repayment negotiation process is an administrative intervention to facilitate good faith negotiations for repayment plans between landlords and tenants. 

Tenants may attempt to negotiate with their landlord privately before accessing the formal negotiation process. In general, ‘good faith’ negotiation means parties dealing honestly, and fairly with one another to genuinely work towards a mutually beneficial agreement in a timely manner, and should involve a two-way flow of information between parties. See the Renters’ Guide to COVID-19: Rent Negotiations

The formal arrears repayment negotiation process facilitated by NSW Fair Trading should be utilised by tenants, especially when landlords are not being cooperative, reasonable or negotiating in good faith. You can apply for the formal arrears repayment negotiation process by filling in the Application for Rent Negotiation form and submitting it through the usual NSW Fair Trading complaints process. Where tenants do not have an existing repayment plan, landlords must participate in formal negotiations before attempting to evict an ‘impacted tenant’.

NSW Civil & Administrative Tribunal (NCAT)

If a landlord or agent has applied to the Tribunal for an eviction hearing, you will receive a ‘Notice of Conciliation and Hearing’ with the date, time and place of the hearing.

If your case is in the Tribunal and you seek to argue that your household is COVID-19 impacted, see their financial impact statement form.

You should attend the hearing and take all letters, receipts and other evidence to support your case.

If you have a dispute with your landlord and you think they may have breached your tenancy agreement, consider making your own application to the Tribunal for an independent, legally binding decision. Please see Factsheet 11: NSW Civil and Administrative Tribunal.

The Tribunal has temporarily adjusted its practices and procedures in response to COVID-19. Currently, all stages of hearings are being conducted over the phone, audio-visual link, or on the papers (this means a decision will be made based on written evidence filed by parties, without verbal evidence or oral submissions). If you require assistance with your Tribunal matter, contact your local Tenants’ Advice and Advocacy Service for advice.

Ending your tenancy

Tenants may consider ending their tenancy for a number of reasons, for example: if they do not fit within the COVID-19 ‘impacted tenant’ criteria; they have not been able to negotiate a repayment plan, they cannot afford to stay in the premises, or for other reasons.

Currently, there are no specific provisions for ending your agreement due to the impacts of COVID-19 like there have been in previous amendments, and you will have to rely on the standard termination provisions depending on the type of agreement you have with your landlord.

If tenants are in a periodic agreement (i.e. an ongoing agreement) they can end their tenancy by giving a minimum of 21 days’ notice, and leaving by the vacate date in the notice. See Factsheet 9: You want to leave.

If tenants are in a fixed-term agreement (i.e. the fixed-term tenancy agreement has not yet expired) tenants may have to pay a break fee or compensation to the landlord for breaking the tenancy agreement early. See Factsheet 16: Ending a fixed-term tenancy early.

Tenants may also transfer their legal liability under the tenancy to someone else, but they must do so in writing, and with the landlord’s written consent. See Factsheet 18: Transfer and Sub-letting.

Tenancy database listings

‘Impacted tenants’ are protected from being listed on a tenancy database (‘blacklisted’) for rent arrears or ending a tenancy if:

  1. the breach of the residential tenancy agreement arose only from a failure to pay rent or charges, and 
  2. at the time of the breach, the person was an ‘impacted tenant’. 

It is important for impacted tenants to ensure that their landlord is aware that they are impacted tenants to prevent being listed on a tenancy database. 

More information

 

Infosheet updated September 2021