What you need to know: Renting and COVID-19
This post covers common questions about renting and Coronavirus COVID-19.
Can my landlord evict me during this crisis?
The WA Government has now implemented an evictions moratorium. From 30 March there is an interim 60 day stop on evictions for rental arrears where the tenant is in financial hardship due to COVID-19. This will be followed by restrictions in place for 6 months for rental arrears evictions for those financially disadvantaged by COVID-19.
After the interim 60 day stop on rent arrears evictions, a landlord will be required to enter into negotiations on rent reduction in good faith with the tenant. If they are unsuccessful at reaching a mutually agreed outcome either tenant or landlord can seek assistance from Fair Trading. Only after negotiations have failed can a landlord seek to terminate the agreement. The The State Administrative Tribunal (SAT) in Western Australia will have discretion to assess whether it is fair and reasonable to evict in the circumstances of each case.
For you to be protected by the 60 day stop on evictions and the longer six month restrictions, your household needs to be able to demonstrate any 1 or more rent paying members of the household have:
- lost employment or income as a result of the impact of the COVID-19 pandemic, or had a reduction in work hours or income as a result of the impact of the COVID-19 pandemic, or
- had to stop working, or materially reduce the member’s work hours, because of— the member’s illness with COVID-19, or another member of the household’s illness with COVID-19, or the 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 before the occurrence of any of the matters
The 25% reduction in household income is assessed on income after tax, and is assessed on total household income, inclusive of any government assistance, such as the new job keeper payments.
There is also an extension of notice periods to 90 days for evictions on a range of other grounds for notices received from 30 March. This includes end of fixed term ‘no grounds’ evictions (section 84), termination for other breaches (section 87, breaches apart from rental arrears), and for evictions for longer term tenancies (section 94).
Residents of registrable boarding houses will also need to be given 90 days written notice before eviction.
Landlords will still be able to apply to the Tribunal to terminate an agreement (to evict the tenant) where they can show they are suffering genuine hardship. The notice period for an eviction on the basis of ‘sale of home’ will also remain unchanged.
Your landlord will still be required to follow the processes laid out in the Residential Tenancies Act 2010. You cannot be evicted without an order from the SAT, and only the Sheriff can physically remove you. See our factsheet on evictions. If you have received a notice of termination for any reason or get one in the coming days, we recommend getting in touch with your local Tenants’ Advice Service for 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 your landlord to reduce your rent. It’s better to be proactive. A community member, Sage, has helped draft this letter you might find useful to send. Fair Trading is also making templates available on their info page on the Covid-19 moratorium. Remember to edit your template before sending!
If your agent or landlord suggests you consider drawing on your super to cover your rent or any debt that has accrued, you should refer them to this ASIC media release and information provided by Fair Trading confirming agents and landlords must not encourage tenants to access their super.
Be very cautious about agreeing to any deferral of rent (i.e. an agreement where you have to pay back unpaid rent at a future time). This may cause significant issues later on.
Marrickville Legal Centre has created an excellent FAQ for tenants that spells out what protections are in place. Fair Trading also provides details on the moratorium, as well as additional resources (including template letters and examples) on their website.
I have lost income, what can I do?
You can initiate negotiations with your landlord about paying a reduced or no rent for a short period. If your landlord isn’t coming to the table and you have been impacted financially by Covid-19 (and meet the eligibility criteria below), you can ask Fair Trading to assist with negotiations for a ‘fair and reasonable’ rent reduction. You’ll also be protected from eviction for rent arrears by an interim 60 day stop on evictions for rent arrears that commenced 15 April.
For you to be protected by the 60 day stop on evictions and the longer six month restrictions, your household needs to be able to demonstrate any 1 or more rent paying members of the household have:
- lost employment or income as a result of the impact of the COVID-19 pandemic, or had a reduction in work hours or income as a result of the impact of the COVID-19 pandemic, or
- had to stop working, or materially reduce the member’s work hours, because of— the member’s illness with COVID-19, or another member of the household’s illness with COVID-19, or the 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 before the occurrence of any of the matters
The 25% reduction in household income is assessed on income after tax, and is assessed on total household income, inclusive of any government assistance, such as the new job keeper payments.
After the interim 60 day stop on rent arrears evictions, if your landlord wants to evict you they will then need to demonstrate they entered into good faith negotiations with you to reduce the rent (this can include a rent waiver, reduction or deferral of some portion). Only after negotiations have failed through the Fair Trading dispute resolution process can the landlord seek to evict you. NCAT will have discretion to assess whether the eviction is ‘fair and reasonable’ in your specific circumstances, and they’ll need to take into account whether a ‘fair and reasonable’ offer was made or not.
If you don’t meet the eligibility requirements set out in the moratorium (see above) you can still attempt to negotiate a reduced rent with your landlord. This may be in their interests because it may be much more difficult and expensive to replace you than give some reprieve. Some landlords will be more willing to do this, especially if their mortgage costs are not excessive. A community member, Sage, has helped draft this letter you might find useful to send. Remember to edit it before sending!
We have heard from renters who’ve contacted their real estate agents or landlords about being in financial distress, and been asked by their agent to consider applying for early release of their superannuation and/or documentation of this before their request for a rent reduction or early release from their lease is considered. The Australian Securities and Investment Commission has made clear they believe this behaviour may be a breach of the Corporations Act and an agent found to be in breach could face hefty penalties. If your agent or landlord encourages you to access your super you might want to refer them to this ASIC media release.
Think very carefully about any offer of rent deferral, i.e. an agreement to defer rent now, but requires you pay back rent later – especially where there is no rent reduction or waiver included as part of the final negotiated outcome. This may cause significant issues later on. It is a good idea to call your local Tenants’ Advice Service to get legal advice before entering into a rent deferral agreement.
I’m trying to negotiate a rent reduction. My landlord wants a lot of personal info?
Renters have sent us examples of very intrusive forms requesting all types of detailed financial information.
There is no legal obligation to provide these details, however, refusing outright may lead to failed negotiations. If you have lost your employment as a result of the health crisis, ask your ex-employer to provide you with a short email (if you don’t already have some documentation) which you could forward to your landlord/agent. You could also choose to provide your bank statement with appropriate redaction so that, for example, purchases made cannot be seen. A letter or statement setting out of your financial position (which you have absolute control over in terms of content) may also assist. Similar to negotiating the amount of rent reduction, you should negotiate the extent of the information provided.
The Australian Securities and Investments Commission has warned real estate agents they face up to five years jail if they ask tenants to withdraw super in order to pay the rent.
Can I be ‘blacklisted’ for not paying rent during the crisis?
For the next 6 months there is a prohibition on listing a tenant on a tenancy database (‘blacklisting’) if the proposed listing is for rent arrears that are the result of being financially impacted by coronavirus.
Although you can’t be blacklisted for an arrears debt during this time, you should continue to pay as much rent as you can afford. The landlord will still likely be seeking to recover any unpaid rent (arrears that have accrued) at the end of your tenancy.
When your tenancy ends, try to come to an agreement about the amount you’ll repay, and the timeframe in which to repay the debt (including the amount and date/s payable). Make sure that your agreement is in writing. Take into account your bond that is still held with the rental bond board, complete the outgoing condition report with your landlord/agent, and come to an agreement about the release of the bond. This could go some way to reduce the arrears debt owed.
If you’re not an ‘impacted tenant’ (i.e. you don’t meet the eligibility requirements outlined above) you aren’t covered by the protections. If you are evicted owing more than the bond is worth, or by a Tribunal order, you may be listed on a tenant database for up to 3 years. This can have a serious impact on your ability to find a home in the future. See our factsheet on tenant databases.
Even if the landlord agreed to reduce the rent, I can’t afford to continue renting this property. I would like to break my lease early and move out – can I do this?
If you are in a periodic agreement (i.e. an ongoing agreement) you can end your tenancy by giving a minimum of 21 days notice, and leaving by the vacate date in your notice. If you get in touch with your landlord and explain your current financial or health circumstances you might be able to negotiate and agree on a shorter period of notice. If you do come to an agreement with your landlord make sure you have this confirmed in writing. Your landlord is not currently required to consider this request, but it’s definitely worth a try. See our factsheet – You want to leave.
If you are in a fixed-term agreement (i.e. your fixed-term tenancy agreement has not yet expired) you may have to pay a break fee or compensation to the landlord for breaking the tenancy agreement. As mentioned above, it is worth writing to your landlord to let them know why you are wanting to break the lease early and asking them to consider waiving any applicable break free or compensation claim (have a read of the factsheet linked below for more information about this).
If you have somewhere to go to, weigh up waiting for a response from your landlord against any notice and penalties that might apply. Make sure to ask the landlord to respond within a reasonably short time frame as waiting for weeks to get a response or determination could end up costing you just the same as paying the
You are also able to apply to the Tribunal to end a fixed term agreement early if you can show the Tribunal that continuing the tenancy would cause undue hardship. However, keep in mind current wait times for hearings at NCAT.
If you have an older agreement, you might find it useful to refer your agent or landlord to the newly introduced structure for break fees for agreements entered into on or after 23 March 2020. At the moment the new structure does not apply for agreements entered into before this date, but your agent or landlord may consider this a good compromise.
We are hoping to see the NSW Government introduce some measures to ensure renters impacted by COVID-19 are able to break their leases without penalty, or a reduced penalty. However no measures have yet been confirmed.
And again, if you do come to an arrangement to end the lease early without penalty make sure you get this in writing. See our factsheet on ending a fixed term tenancy early.
I’m having trouble with other household bills, what can I do?
If you are having trouble paying other household bills like electricity, gas or water contact your provider/retailer to find out about their customer assistance program and its eligibility criteria. All electricity and gas retailers are required to have a customer assistance program. If you are eligible under the program you are protected from disconnection and your retailer should work with you to develop a suitable payment arrangement and offer other relevant relief or support.
The Energy and Water Ombudsman NSW has more information about these customer assistance programs, and range of useful resources you may be eligible for if you are facing financial difficulties. See also the Australian Energy Regulator’s info for customers in hardship. Usefully they have their fact sheets in a range of languages other than English.
I am supposed to be at Tribunal, should I still go? What will happen to my case?
NSW Civil and Administrative Tribunal has now announced changes to their procedures on their website.
You can apply to have a phone hearing. Ensure you inform the Tribunal if you are in a higher risk category, for example if you are immune suppressed or a carer for elderly relatives, so they can consider this when assessing and prioritising your request. While you are able to do a phone hearing on a mobile, in general landlines are preferred because of the reliability of the line.
If you are unwell and/or required to self isolate and will be unable to attend the hearing you can request the Tribunal adjourn the hearing – that is, for the Tribunal to change the date of the hearing. More information about requesting an adjournment can be found on the Tribunal’s website here.
If you have an NCAT hearing this week for an eviction get in touch with your local Tenants’ Advice Service immediately for free legal advice.
I am an international student and affected by the travel ban. What can I do?
Many students already have housing organised in Sydney, but are now affected by the travel ban. They may have entered arrangements that are individual or shared residential tenancy agreements in the private rental market, lodgings in private households, or some that are less clear – for example, in Sydney, with Campus Living Villages, Iglu or Urbanest whose forms may look something like a tenancy, or something like a boarding house. Some, especially those on university grounds, are excluded from both the Residential Tenancies Act 2010 and the Boarding Houses Act 2012.
Those blocked from entering the country for some time may be liable for occupancy fee or rent over this period. The relevant legislation is silent here. Both the Schedule 1 (‘Occupancy Principles’) of the Boarding Houses Act 2012 and Section 43 of the Residential Tenancies Act 2010 cover abatement of rent, but never anticipated this type of situation. Some people who are not covered by residential laws may need to refer to the Australian Consumer Law or even common law.
We recommend the following courses of action:
As soon as possible seek to negotiate with your landlord for a waiver of any board or rent covering the period of your absence due to the travel ban. As well as being the decent thing to do, it may also be in their commercial interest to avoid missing out on your contract entirely if the ban prevents significant numbers of people starting their studies this year.
Contact your local Tenants’ Advice and Advocacy Service for assistance in negotiating with your landlord if your own efforts come to nothing – tenants.org.au/get-advice. Again the rules may be different for different kinds of landlord or renting agreement.
Ensure you know your rights regarding any items left behind. See our factsheet on goods left behind.
You cannot be evicted from your housing unless the landlord follows the proper legal process. See the information above, and our factsheet on evictions.
If your housing provider has a relationship with your educational institution, contact your student association or university housing officer (where there is one) for assistance, given the Task force chair’s comments reported here.
If you need to break your fixed term lease early, see above (but again, be aware the rules may be different for different kinds of landlord or renting agreement. If you are uncertain about what kind of renting agreement you have contact your local Tenants’ Advice and Advocacy Service – tenants.org.au/get-advice).
Contact your student association and tell them about your experience.
I’m in public or community housing. Will my rent go up due to increasing social support payments?
Renters in public and community housing have expressed concern that their rent may increase because pensioner and other income support payments are being increased. There are two payments, the Economic Support payments of $750 and Coronavirus Supplement of $550 per fortnight. These two payments are not assessable for calculating rents in public and community housing. So, your rent should not increase. You can look up the new list of what income is assessable on the DCJ website here.
Does the COVID-19 crisis change any of my rights or obligations?
Keep checking tenants.org.au to make sure you have the most current and accurate information about your legal rights about renting in NSW.
If you need any general legal advice and information about renting in NSW, your local Tenants’ Advice and Advocacy Service are the best people to speak to, and their services are free! Their contact details are under Get Advice – tenants.org.au/get-advice.
Can I move house during the current gathering/movement restrictions in NSW?
Travelling for the purpose of moving house is a ‘reasonable excuse’ that will not breach the NSW Public Health Orders. You can also leave your current house to inspect other houses you are thinking of moving into.
Also removalists are covered as they are people who cannot work from home. However, it appears that a gathering of non-professionals such as friends or family to assist you to move may be in breach of the public health orders.
