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Tenants Not Paying Rent / Eviction Moratorium

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Moratoriums preventing commercial and residential landlords from evicting tenants who are unable to pay due to financial pressures caused by Covid-19 were in place for about 6 months,  but most states have now ended the moratoriums. Some special situations still apply. 

PropertyNow is committed to keeping homeowners and landlords up to date on the constantly evolving regulations and how best to handle these difficult situations. We’ll work through a few scenarios and some suggestions on how to manage the situation that is best for everyone.

Note that some homeowners will receive support from their landlord’s insurance to cover rental losses, depending upon how they deal with their tenants. See State-specific resources below.

To start with, this moratorium on evictions only applies to tenants who are not able to meet their obligations due to financial distress as a result of the coronavirus crisis according to Prime Minister Scott Morrison.

Step #1 – Communicate With Your Tenant

Have a conversation with your tenant; see what their personal situation is – did they lose their job, have their hours been reduced. Empathy goes a long way – take a few minutes to ask about their family and themselves and find out how they are doing. Being focused strictly on business does not endear the tenant to you; ideally you have been engaged from the get-go and this display of empathy will not appear fake.

Step #2 – Educate Yourself on Mortgage Relief Resources

  • Land Tax relief may be available to landlords where their tenancy has been affected by COVID-19.
  • Each state has its own frameworks to follow if tenants are late with rent.
  • It is imperative to know what your landlord insurance will cover before you make an agreement with your tenant. It is unlikely that insurance will cover you if you agree to reduce, suspend or defer rent from a tenant. Some states do have programs in effect that will help defray your expenses should you decide to work with your tenant. See state-specific information below.
  • Property investors should also speak to their bank about getting a mortgage holiday – either pausing or reducing their monthly repayments.

Step #3 – Educate Your Tenant on Available Resources (and yourself as well!)

It is possible that your tenant may not be aware of financial options that are available to them during this pandemic. If you advise them of all possible options, you have a higher chance of obtaining rent from someone who previously did not have sufficient funds to cover the entire rent.

  • For local emergency relief providers search ‘Financial Crisis and Material Aid – Emergency Relief’ at serviceproviders.dss.gov.au. Please note provider details are updated regularly but may not be current at the time of your search.
  • For financial counselling, including advice on managing debt, contact the free and confidential National Debt Helpline by calling 1800 007 007.
  • Those on a low income may be eligible to apply for a ‘No Interest Loan’. For more information and details on how to apply, visit Good Shepherd Microfinance
  • To test eligibility for income support payments including JobSeeker, contact Services Australia by visiting servicesaustralia.gov.au.
  • There are a number of Government funded crisis and support services to help people during the coronavirus pandemic. Download a list of dedicated online and telephone-based services for people with disability, older Australians, carers, and people experiencing domestic, family, or sexual violence.

Things that tenants need to know:

  • Centrelink may be able to help with rent assistance in certain situations (those who already qualify for income support such as JobSeeker payment, Youth Allowance, or the Parenting Payment)
  • If rent is not paid, debt continues to accrue. Once the moratorium ends, eviction will be an option.
  • Landlords have the right to keep a tenant’s bond to cover the rent.
    • Rent owed beyond the bond can be pursued through debt collectors or file court proceedings, which could impact credit ratings
  • There are privately owned tenancy databases (e.g. National Tenancy Database, Tica, and Trading Reference Australia) that real estate agents may use to screen prospective tenants. A track record of missing payments can mean a black mark on a future rental application, making it difficult to obtain a new lease.

Step #4 – Come up With an Arrangement

All states are suggesting that tenants and landlords work together first and foremost to come up with an agreed upon arrangement relating to rent.

Options include:

  • Reduce the rent
  • Suspend the rent
  • Payment plan
  • Break Lease
  • Final Option (no agreement possible)

Pros and Cons of each option (see state specific information below)

OptionProConGood For
Reduce the rentLandlord continues to have some money coming in.

May not be eligible to claim loss of rent via landlord insurance.

Note this reduction is not payable by the tenant in future – that would be a deferral (see below).

Landlords in states and Territories that are planning to Land Tax relief for tenancies impacted by COVID-19 (see state specific information below)
Suspend the rent (Rent becomes $0 for a specified period of time)Should a landlord have a tenant who is otherwise ideal (e.g. has lived in the unit for years, pays rent on time, is quiet, etc.), this may be an option to consider.May not be eligible to claim loss of rent via landlord insurance.This money is not payable at a future date.Landlords with ideal tenants they’d like to help out.
Payment plan (Deferral)Landlord continues to have some money coming in and the reduction offered during the pandemic is payable in the future.If you do need to evict the tenant in future, you are able to show the Tribunal that you made an effort to work with the tenant.

If a tenant was unable to pay full rent during the pandemic and does not receive any sort of external financial relief, there is a possibility they will never be in a position to repay that rent that was not paid.

Landlord Insurance provider MAY be more inclined to cover a portion of rent (e.g. the deferred amount).

States offering to meet landlord efforts at deferring tenant rent
Break Lease – Landlord and tenant may agree to end a fixed lease earlyLandlord is not stuck with a non paying tenant.It may be difficult to get a new tenant during Covid-19.A market or listing that has a high likelihood of getting a new tenant in the next couple of months.

Step #5 – No Resolution Possible

If you need to evict your tenant, you’ll have to follow state procedures for COVID-19 related issues and use the free mediation service provided by the Tribunal or follow normal eviction procedures.

Note that the Tribunal will most likely not hear an application during the pandemic but you still need to make the application within the proper time frame and serve appropriate notices in order to keep within the guidelines and requirements of your Landlord Insurance policy.

State Specific Information

TASMANIA

The Tasmanian Government extended the COVID-19 emergency period for residential tenancies to 31 January 2021. This means some protections initially put in place for residential tenants during the pandemic have now ended.

The Tasmanian Government is providing financial support for residential tenancies in the private market and who are experiencing financial hardship due to the impact of the coronavirus (COVID-19).

The COVID-19 Rent Relief Fund and Landlord Support Fund offered support of up to $2,000 or four weeks rent per fund to eligible tenants and landlords. Additional support is available between 1 April 2021 and 30 June 2021.

Tenants can apply for a first, second, third, fourth or fifth support payment if eligible. Landlords can apply for a first, second, third and fourth support payment if eligible.

Changes to the Residential Tenancy Act 1997 have been introduced to allow the Residential Tenancy Commissioner to issue a repayment order which will allow landlords to recover any outstanding rental arrears which have been accrued during the COVID-19 emergency period.

The rent arrears payment order does not override the obligation of a tenant to make regular payments of rent but instead, the order outlines a schedule for repayments in addition to normal rent obligations

State Resource: 

QUEENSLAND

Queensland maintains a moratorium on evictions due to rent arrears caused by Covid-19 and property owners will be prohibited from evicting a tenant if their lease expires during this pandemic. The moratorium will be in place until 30th April 2021

Protections that continue to apply until 30 April 2021, include:

  • Provisions allowing tenants experiencing domestic and family violence to end their tenancies quickly
  • Protections for tenants against being listed in a tenancy database for rent arrears caused by COVID-19 impacts
  • Limits on reletting costs for eligible tenants who end their fixed term tenancies early
  • Short term tenancy statement extensions for moveable dwellings
  • Entry restrictions and requirements to support COVID-19 social distancing measures
  • Relaxed repair and maintenance obligations.

What ceased to apply from 29 September 2020

  • The six-month eviction moratorium for COVID-19 rent arrears
  • Fixed-term agreement extensions for COVID-19 impacted tenants
  • Ending agreement provisions that prevent property owners ending tenancies with COVID-19 impacted tenants without grounds and provide additional grounds for parties to end tenancies (owner occupation and sale of premises which require vacant possession)
  • Adjusted rent and bond processes that support parties to negotiate arrangements to manage COVID-19 impacts on their tenancies
  • Mandatory conciliation of COVID-19 related tenancy disputes through the Residential Tenancies Authority (RTA).

State Resources:

Other Resources:

 

AUSTRALIAN CAPITAL TERRITORY

In line with the commitment by National Cabinet, the ACT implemented a 6-month moratorium on evictions for non-payment of rent for COVID-19 impacted households between 22 April and 22 October 2020.  The eviction moratorium has now ended.  However, the ACT Government has put in place measures to continue to support tenants and landlords and to provide a smooth transition out of the moratorium.

These measures are:

  • A transition period which limits evictions on the basis of rent arrears accrued during the moratorium for COVID-19 impacted households in certain circumstances;
  • The continued ability to negotiate reduced rent;
  • A requirement for the ACT Civil and Administrative Tribunal (ACAT) to consider making a payment order instead of an eviction order for COVID-19 impacted household;
  • The continued ability for a tenant in a COVID-19 impacted household to terminate their fixed-term tenancy agreement early and without penalty;
  • Continued restrictions on a negative listing being made about a person from a COVID-19 impacted household on tenancy databases;
  • The ability for a tenant from a COVID-19 impacted household who had previous ACAT orders suspended during the moratorium to apply to ACAT to vary or set aside those orders;
  • The continued ability for tenants on pre 6 April 2020 fixed-term tenancies to pay just two weeks rent in advance (all other tenants are already able to do this).

These measures commenced on 23 October and will operate until 30 April 2021 (unless extended).

State Resources:

Other Resources:

 

VICTORIA

The temporary changes to renting laws because of COVID-19 ended on Sunday 28 March 2021

This means that from Monday 29 March 2021:

  • Rent reduction agreements can no longer be lodged with Consumer Affairs Victoria 
  • You can apply directly to the Victorian Civil and Administrative Tribunal (VCAT) for dispute resolution
  • Applications for the rent relief grant have closed
  • Rental providers (landlords) can issue a notice to vacate to renters (tenants) and raise the rent again, but new rights and responsibilities apply

For more information about your rights and responsibilities under Victoria’s new renting laws visit the Consumer Affairs Victoria website

Government Resources:

Other Resources:

 

NEW SOUTH WALES

The temporary tenancy moratorium introduced to restrict when landlords could evict tenants due to rental arrears as a result of COVID-19 ended on 26 March 2021.

From 27 March 2021, a six-month transitional period has begun.

What are the rules during the transitional period?

A six-month transitional period means COVID-19 impacted tenants who accrued rent arrears between 15 April 2020 and 26 March 2021 (the moratorium period) will not be subject to the standard tenancy eviction rules for those arrears.

  • Tenants and landlords will be assisted by Fair Trading to negotiate repayment plans for arrears accrued during the moratorium period.
  • Landlords will only be able to evict these tenants for these arrears if they have first attempted in good faith to negotiate a repayment plan. It also has to be fair and reasonable to evict.
  • If a landlord and tenant have agreed to a repayment plan, the tenant cannot be evicted unless they have failed to meet agreed repayments on two consecutive occasions.
  • Tenants and landlords will continue to be able to apply to NCAT to terminate tenancy agreements on the basis of hardship.
  • Termination proceedings already started during the moratorium period will continue under the rules in place during that time.

Existing agreements between a tenant and landlord about the waiver or deferral of rent payment will not be affected by the end of the moratorium and the transitional measures.

The measures also prevent landlords from evicting a COVID-19 impacted tenant who accrued rental arrears during the moratorium period using the ‘no grounds’ eviction process (which applies to periodic leases), unless it is fair and reasonable to do so.

COVID-19 impacted tenants are also permanently protected from being listed on tenancy databases for arrears accrued during the moratorium period.

Landlords will be able to terminate any tenant under standard provisions for arrears accrued after the moratorium measures end on 26 March 2021.

The transitional measures will end on 26 September 2021.

To understand how the transitional measures may affect a tenancy agreement, see the Flowchart -Termination of tenancy after COVID-19 moratorium

Government Resources:

Other Resources:

 

NORTHERN TERRITORY

The Northern Territory government recalled parliament to sit on 24 April 2020 to pass more coronavirus emergency legislation, including residential tenancy laws.

Attorney-General Natasha Fyles told Parliament that severe penalties would apply to both NT tenants and landlords caught taking advantage of emergency rental laws.

It is expected that there will not be a moratorium on evictions but rather, renters can go into 60 days of arrears before getting a further 60 days to rectify this with their landlord, giving both parties extra time to negotiate next steps. Only after the 120 days can landlords move to evict tenants under the normal process of going through NT Civil and Administrative Tribunal.

Residential tenants must prove, through a letter from their employer or bank statements, that coronavirus restrictions have caused their income to be reduced to the point their rent eats up more than 30% of their pay.

The maximum penalty for misrepresenting information is a $31,400 fine (200 penalty units) or two years in prison.

Government Resources:

Other Resources:

 

WESTERN AUSTRALIA

The extended COVID-19 emergency period has ended, which means the ordinary tenancy laws under the Residential Tenancies Act 1987 (WA) apply again. 

Landlords and tenants are encouraged to act and negotiate in good faith to agree on reasonable and workable tenancy arrangements, helping to create a safe and secure renting future for everyone.

Government Resources:

Other Resources:

 

SOUTH AUSTRALIA

The laws are effective from 30 March 2020 and will stop operating when all relevant declarations relating to the outbreak of the COVID-19 within South Australia have ceased OR on 31 May 2021 – whichever occurs first.

Some changes:

  • Tenants cannot be blacklisted as a result of circumstances caused by Covid-19.
  • There is a short-term moratorium on eviction for non-payment of rent due to severe rental distress as a result of COVID-19
  • landlords cannot increase rent
  • landlords may use technology such as face-time, live video or time-stamped photos for routine inspections where possible, unless there are exceptional circumstances and sufficient safety measures in place for an inspection in person

The South Australian government has cut land tax by $189m from July 2020, and extended a $13m relief package to allow deferment of 2019-20 land tax bills by six months.

Where alternative arrangements are needed as a result of COVID-19, tenants and landlords are encouraged to work together on an agreement and – where an agreement cannot be reached – the matter may need to go before the South Australian Civil and Administrative Tribunal.

Government Resources:

Other Resources:

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