Regulation change:
NSW landlords & tenants

Matters to consider

Firstly: it is important to note that not all breaches are protected, only breaches that

• occur in the “prescribed period”. A fundamental change made is the extension of the prescribed period. Initially, this period was from 13 July 2021 to 20 August 2021. However, the end date has been extended to 13 January 2022. The prescribed period, therefore, is now 13 July 2021 to 13 January 2022.
• Relate to the economic impacts resulting from the pandemic. Things like failing to pay rent and outgoings, or failing to open for business. A landlord may still take action for breaches that aren't related to the economic impacts of the pandemic or breaches before the prescribed period.  

Secondly: a landlord can't increase the rent of an impacted lessee (tenant) during the prescribed period.  

Thirdly: to prevent a landlord from taking action, the tenant must initiate the process by giving the landlord notice that they will be breaching the lease (or within a 'reasonable time' after breaching the lease) and provide the landlord with documentation that proves they qualify as an impacted lessee.  

Fourthly: once the notice and documentation are given, the landlord can't take action unless and until:

• a formal mediation has taken place. A formal mediation must be before the Small Business Commissioner. If mediation doesn't result in a solution and the Registrar issues the right certificate confirming the failure to find a solution; and
• if the impacted lessee (tenant) requests renegotiations on rent and other terms under the lease, then the landlord must comply with the obligations to renegotiate. This requires that the tenant makes the request first, it is not up to the landlord. Once requested, both parties must negotiate in good faith and commence renegotiations within 14 days and in doing so, must take into account the impacts of the pandemic and the leasing principles in the National Code of Conduct. These principles include granting an impacted lessee rent relief based on proportional reduction in turnover.  A tenant may make a second or subsequent request to renegotiate unless the tenant agreed to waive that right to make a further request.

Fifthly: landlords can seek separate relief if they provide rent relief to an impacted lessee including land tax relief and NSW Government grants.