On 24 April 2020, the Queensland Government implemented the Residential Tenancies and Rooming Accommodation (COVID-19 Emergency Response) Regulation 2020.
Snap shot of the key measures
- Section 8 – a freeze on evictions for unpaid rent between 29 March 2020 and 29 September 2020 (or any earlier end to emergency period) if a tenant is unable to pay due to having suffered or is suffering excessive hardship because of COVID-19 (“Excessive Hardship” – see Section 6 and the second heading below). Up to 50 penalty units can apply if breached. One “penalty unit” currently equals $133.45.
- Section 9 – if a fixed term tenancy agreement is due to expire on or before 29 September 2020, and the tenant is suffering Excessive Hardship, the landlord must offer the tenant an extension to 30 September 2020 (or an earlier date requested by the tenant). Up to 50 penalty units can apply.
- Section 11 – if rent is unpaid for a 7 day period and the landlord knows (or should know) the tenant is suffering Excessive Hardship, the landlord must not give a “Notice to Remedy Breach” but may give the tenant a “show cause notice” to either pay the unpaid rent or inform the landlord that rent is unpaid due to Excessive Hardship. The landlord may then request that the tenant enter a “tenancy variation agreement” (with rent-reduction or payment plans). Dispute-resolution provisions can apply in some circumstances.
- Section 13 – “tenancy variation agreements” can be entered generally or pursuant to the “show cause notice” process. Other Sections (eg Sections 14 & 16) protect against unintended effects on Bonds and Rent Review if the rent decreases due for COVID-19 reasons.
- Section 46 – if a tenant is unable to pay rent due to Excessive Hardship (etc.), and the database user knows that reason, a tenant must not be listed on the tenancy database for rental arrears. Up to 20 penalty units can apply.
- Sections 17 & 18 – if certain COVID-19 reasons apply, tenants can refuse physical entry onto a property for non-essential reasons (eg routine inspections), however they must agree to virtual inspections occurring.
- Sections 35-42 – new reasons for a landlord or tenant to end the tenancy agreement include but are not limited to:
- the landlord or their immediate family need to move into the property (Section 37);
- the property owner is preparing the property for sale or the sale of the property requires vacant possession – with such termination expressly overriding a fixed-term agreement end date (Section 35);
- the tenant is experiencing domestic and family violence (Sections 21-34);
- the tenant finds on moving into the property that it is not in good repair; or
- the tenant is suffering excessive hardship and a conciliation agreement is unable to be reached.
- Section 38 – use of “notice to leave without grounds” is restricted where tenant suffers Excessive Hardship.
- Section 40 – up to 50 penalty units can apply for landlord misuse of “premises to be sold” or “premises needed for landlord/family occupation” notices.
When is someone suffering “excessive hardship” due to COVID-19?
Section 6 – a tenant is suffering excessive hardship due to COVID-19 if:
- they or someone they care for suffers from COVID-19; or
- they are subject to a quarantine direction; or
- a public health direction has closed their employment or restricted their employer’s trade or business, including for example a public health direction has closed a major supplier or customer of their employer; or
- they are self-isolating because they or someone they live with or are a primary carer for is a “vulnerable person” (defined in Schedule 1 to include people over 70 years old and others with particular health vulnerabilities); or
- they are unable to work because a travel restriction imposed under a public health direction prevents them from working or returning home; or
- they have been prevented from leaving or returning to Australia;
- they suffer a loss of income of 25% or more; or
- the rent payable under the current agreement is 30% or more of the their income.
[If there is more than one person under the tenancy agreement, the 25%/30% guidelines apply to the combined income of all tenants.]
Evidence required to show excessive hardship due to COVID-19?
Section 85 – a landlord can require evidence such as an employment separation certificate (job termination/loss of work hours), confirmation from Centrelink of income support, a medical certificate or information similar to what was provided when the tenancy commenced. For clarity, income is the total weekly income after tax and includes government payments (such as JobSeeker).
If a tenant ceases suffering from Excessive Hardship they must inform the Lessor (Section 85(4)). Up to 20 penalty units can apply.
Section 86 – up to 50 penalty units can apply for giving a person (or a tribunal etc) false or misleading material for the purposes of claiming Excessive Hardship.
Important Notice: The information in this article is current as at 28 April 2020. It is for general purposes only and reflects a rapidly changing situation. Consequently, this article is not intended to constitute legal advice.
If you require assistance any assistance with your legal matters, please contact us on 07 3392 0099.
Written by Sam Rose, Graduate and Julian Creagh, Associate, Wilson Lawyers.