Parties may also wish to speak to a lawyer about how the Regulations apply to them. What will happen to the Regulation after 28 March 2021? These are the current health related fees and rates orders. Do I have to pay all the rent back and when? The rent relief requirements and most other provisions in the new Retail and Other Commercial Leases (COVID-19) Regulation (No 3) 2020 remain the same as the previous Regulation. Under the leasing principles, lessors must reduce rent in proportion to the lesseeâs decline in turnover. After the prescribed period and where a lessee is no longer eligible, the lessor cannot take âprescribed actionâ against the lessee if the lessee fails to pay an amount equivalent to or representing the rent increase. The NSW Government has implemented the Code of Conduct announced by the Prime Minister on 7 April 2020 to support commercial lessees in financial distress due to the impacts of COVID-19. When the rent does not need to be paid back, that is called a rent waiver (or waiving rent). Payment of rental deferrals by the tenant must be amortised over the balance of the lease term and for a period of no less than 24 months, whichever is the greater, unless otherwise agreed by the parties. We pay respect to the Traditional Custodians and First Peoples of NSW, and acknowledge their continued connection to their country and culture. Is this unfair for lessors, particularly mum and dad investors who may have a mortgage to pay but no rent coming in? This is the second extension and was enacted via a new regulation, the. These distinctions have effectively been abolished with New South Wales adopting uniform defamation laws in 2005, which commenced operating in 2006. What does it mean to enter into âmediationâ to renegotiate rent? It also includes business in a retail shopping centre. Mediation will also help to limit the consequences or remove that risk altogether. Landlords must offer tenants proportionate reductions in rent payable in the form of waivers and deferrals of up to 100 per cent of the amount ordinarily payable, on a case-by-case basis, based on the reduction in the tenantâs trade during the COVID-19 pandemic period and a subsequent reasonable recovery period. When should parties finalise their agreement? On 24 April 2020, the NSW Government enacted the Retail and Other Commercial Leases (COVID-19) Regulation 2020 to implement the Code of Conduct. What happens if a lessee still canât pay rent when their rent relief agreement ends? In renegotiating rent, lessors and eligible lessees must have regard to the leasing principles in theÂ. For more information about these measures, landlords and tenants can refer to the Service NSW website. Lessees should also provide lessors with sufficient documentation to demonstrate actual decline in turnover to calculate rent reduction. This topic has information about claims and debts of $20,000 or less. We want to keep businesses in business so they can rebound and support jobs and the economy in the future. The leasing principles in the Code of Conduct. These include principles 3, 4 and 5 that refer to rent reduction and apply on a case by case basis:  Lessors must offer reductions in rent (in the form of deferrals and waivers) proportionate to the lesseeâs decline in turnoverÂ,  Rent waivers (as opposed to deferrals) must constitute at least 50 per cent of the rent reductionÂ. Statement of Claim (UCPR 3A/3B) A Statement of Claim (UCPR form 3A/3B) is used to start a civil court case. We encourage lessors with loans to contact their banks for additional relief arrangements. For urgent matters involving a threatened or actual eviction, interim arrangements can be sought through the court system. Find out more information about retail leases. The NSW Regulation balances the interests of lessees and lessors, and allows flexibility to deal with matters on a case-by-case basis.Â. This concession is in addition to the concession provided to lessors that reduced rent before 30 September 2020 (the total available concession for the 2020 land tax year is 50 per cent). Interim arrangements for urgent matters involving a threatened or actual eviction, can be sought through NSW Civil and Administrative Tribunal or the courts. If commercial lessors breach their obligations under the NSW Regulation, the lessee must seek mediation in the first instance through the NSW Small Business Commission. Commercial lessors and lessees that cannot reach an agreement can contact Service NSW for advice on next steps.Â. Evidence theyâre receiving JobKeeper payments up to 28 September 2020 (or evidence of at least a 30 per cent decline in turnover compared with a corresponding month or quarter in 2019 â or 15 per cent for not-for-profits). The Regulation initially applied for a period of six-months. If negotiated arrangements under this Code necessitate repayment, this should occur over an extended period in order to avoid placing an undue financial burden on the tenant. An eligible lessor that has provided rent reductions between 1 April 2020 and 28 March 2021, to eligible lessees experiencing financial distress due to the pandemic, may be eligible for land tax relief of up to 50 per cent for the 2020 land tax year, and up to 25 per cent for the 2021 land tax year. The other party must respond to the request within 14 days. This page provides summaries of significant cases from the New South Wales Court of Appeal and the High Court of Australia, since 1 October 2012, that relate to sections of the Civil Liability Act 2002 (NSW). Where the lessor and lessee are unable to reach an agreement through this process, the parties will be able to pursue action through the courts. We understand the package could place additional pressure on lessors, however, we are trying to share the load more evenly during these challenging times. Lessors in this situation should seek legal advice about how the Regulation applies to them.Â. For help with interim deals, as well as longer term arrangements, commercial lessees and lessors can contactÂ. What are the Leasing Principles in the Code of Conduct? Where lessors and eligible lessees are unable to do this, they must attend mediation through the Small Business Commission, before pursuing certain claims in the civil courts. The Small Business Commissionâs mediation service supports parties to resolve disputes in a cost-effective and non-adversarial way.Â. Opening or keeping open the registry or part of the registry: Requesting production to the court of documents held by another court, Furnishing one or more sealed or certified copies of a judgment or order, or of the written opinion or reasons for opinion of any judicial or other officer of the court, Retrieving, providing access to and furnishing a copy of any document (otherwise than as provided for by items 6,8,10), Retrieving and providing access to, but not furnishing a copy of, any file or box of files, where the file or box of files is retrieved from an off-site storage facility, Supplying a duplicate recording of sound-recorded evidence - per disc. If I was eligible under a previous Regulation but am not eligible under the current Regulation, can the lessor backdate a rent increase? A retail shop lease is a lease covered by the Retail Leases Act 1994 (the Act). The types of shops covered are listed in Schedule 1 of the Act and include everything you would expect to see in high street retail such as: clothing retailers, hairdressers, butchers, beauticians, cafés and restaurants, newsagencies, and travel agencies. Extending the protections will help support some of the most vulnerable small business lessees who remain in financial distress due to the COVID-19 pandemic. For help with interim deals, as well as longer term arrangements, commercial lessees and lessors can contact Service NSW for Business. A sample of a written agreement is available on Service NSWâs website: the same agreement is available on the page for lessors here, and on the page for lessees here . The Small Business Commissionâs Mediation Services team can help parties to reach a Code-compliant arrangement. Litigants in person and parties in Small Claims Division proceedings need the leave of the court to issue a subpoena (r 7.3 UCPR). What are the penalties for a lessor who breaks any of these new rules? exercising a right of re-entry to the premises; Can a lessor evict an eligible lessee if the lessee did not respond to a request in 14 days or act in good faith in the negotiation? Parties should try to finalise an agreement as soon as possible and put it in writing. NSW Local Court support for witnesses, victims of crimes, language support, legal help, technology, complaints and more. If the builder cannot be found, NSW Fair Trading will issue you a letter that can be submitted with your HBCF claim. Locking out a lessee or terminating a lease can carry risk. A landlord should seek to share any benefit it receives due to deferral of loan payments, provided by a financial institution as part of the Australian Bankers Associationâs COVID-19 response, or any other case-by-case deferral of loan repayments offered to other Landlords, with the tenant in a proportionate manner. NSW Local Court Practice Notes, registrars delegations, time standards. This is intended to provide the tenant additional time to trade, on existing lease terms, during the recovery period after the COVID-19 pandemic concludes. Not-for-profit organisations must have experienced a 15 per cent decline in the December quarter 2020 compared to the December quarter in 2019. and include everything you would expect to see in high street retail such as: clothing retailers, hairdressers, butchers, beauticians, cafés and restaurants, newsagencies, and travel agencies. Filing a court attendance notice under Chapter 4 of the Criminal Procedure Act 1986 to commence proceedings to which Parts 2-4 of that Chapter apply, Filing an application under Chapter 4 of the Criminal Procedure Act 1986 to commence proceedings to which Part 5 of that Chapter applies, being proceedings in the Land and Environment Court (Class 5 of that Court's jurisdiction), Filing an application to the Local Court for annulment of conviction or sentence under Part 2 of the Crimes (Appeal and Review) Act 2001, Filing a notice of appeal, or an application for leave to appeal, to the District Court under Part 3 of the Crimes (Appeal and Review) Act 2001, Filing a notice of appeal, or an application for leave to appeal, to the Land and Environment Court under Part 4 of the Crimes (Appeal and Review) Act 2001 (Class 6 or 7 of that Court's jurisdiction), Issuing a certificate of conviction or dismissal. NSW Local Court sentencing, judgments, orders in criminal cases and dispute resolution or orders in civil cases plus appeals of Court decisions. The European Small Claims Procedure is used where one party is in another EU member state. Â, Tax returns and/or Business Activity Statements to demonstrate an annual turnover less than $50 million in 2018-19; and The Small Business Commissionâs Mediation Services team can help parties to reach a Code-compliant arrangement, A rent deferral (or deferring rent) means that the rent still needs be paid, but only at a later date agreed by the parties.Â.  It also refers to when the lessee should commence paying down agreed rent deferrals. a 30 per cent decline in turnover in the December quarter, (October, November, December) relative to a comparable period in 2019 based on actual GST turnover rather than projected GST turnover (or 15 per cent decline for not-for-profits).  The Small Business Commissionâs mediation service supports parties to resolve disputes in a cost-effective and non-adversarial way. Find out more information about mediation. Application to waive or postpone a fee is made in writing to a registrar. Lessors and lessees may need to get their own legal advice if they are unsure about how the Regulations might apply to them. A lessor can still evict an eligible lessee for reasons not related to COVID-19, for example if the lessee has damaged the premises or failed to vacate the premises after the expiry of a fixed term lease. For more information, refer to the: We acknowledge the traditional owners and custodians of the land on which we work and we pay respect to the Elders, past, present and future. Under the Regulations, parties must negotiate in good faith and have regard to the leasing principles in the Code of Conduct and the economic impacts of COVID-19. Landlords must not terminate leases due to non-payment of rent during the COVID-19 pandemic period (or reasonable subsequent recovery period). The National Code of Conduct refers to the parties negotiating for rent waivers as well rent deferrals. Which lessees are eligible under the Regulations? Our website uses an automatic service to translate our content into different languages. Lessors and lessees may need to get their own legal advice if they are unsure whether their tenancy is classified as a retail shop lease. This means if a lessee has experienced a 40 per cent decline in turnover due to COVID-19, then the lessor must provide a 40 per cent reduction in rent.Â. meets all three of the following criteria: had a total annual turnover of less than $5 million in 2018-19 financial year; AND. We want to share the economic impact of COVID-19 across lessors and lessees, to make things fairer. These fees apply from 1 July 2020. Legal advice prior to taking such action can help a lessor assess that risk. Regard must also be had to the Landlordâs financial ability to provide such additional waivers. The current District Court small claims procedure rules date from 2007, with amendments down to 2009. The Small Business Commissionâs Mediation Services team can support parties to resolve disputes in a cost-effective and non-adversarial way. Any application for mediation through the Small Business Commission will be assigned a case manager and treated as a high priority. The tenant should be provided with an opportunity to extend its lease for an equivalent period of the rent waiver and/or deferral period outlined in item #2 above. If a lessee was eligible under the first Regulation but is no longer eligible under the current Regulation, the situation is similar:  Lessees in these situations may wish to speak to a lawyer about how the Regulations apply to them. Â. Extending the protections will help support some of the most vulnerable small business lessees who remain in financial distress due to the COVID-19 pandemic. The NSW Government extended protections for eligible lessees to 31 December 2020 under the Retail and Other Commercial Leases (COVID-19) Regulation (No 2) 2020. Also keep in mind that lessees and lessors will need to consider the profitability over the remaining fixed term of the lease. It can be difficult to negotiate a lease arrangement when thereâs uncertainty about the businessâ future viability.Â. This might be one of the other lease terms, besides rent, that the parties negotiate. Yes, regardless of whether the Regulations apply, you could negotiate with the other party, and apply for mediation if negotiations stall. The Regulation is available here: The economic impact of the COVID-19 pandemic.Â. If partiesâ negotiations have stalled, they should look to follow the dispute resolution process in the Regulation as soon as possible, which is set out below â see the section headed âDisputes and mediationâ below.Parties may also wish to speak to a lawyer about how the Regulations apply to them, including the timing aspects. Material failure to abide by substantive terms of their lease will forfeit any protections provided to the tenant under this Code. Under the Regulation, parties to an impacted lease must commence negotiations within 14 days of a request for rent relief, or another timeframe both parties agree on. Filing a notice of appeal, or application for leave to appeal, to the District Court under Part 3 of the Crimes (Appeal and Review) Act 2001, as applied to proceedings under Part 4 of the Local Court Act 2007: Issuing a subpoena (for production, to give evidence, or both), Receipt by the registrar of a document or thing produced in compliance with a notice to produce under Part 34 of the Uniform Civil Procedure Rules 2005, Filing or registering a copy or certificate of a judgment, order, determination, decree, adjudication or award of any other court or person under section 133 of the Civil Procedure Act 2005. If an eligible lessee under the current Regulations has previously agreed to a rent relief arrangement with their lessor, they can make a further request for rent relief before 28 March 2021. Thatâs as long as theyâre asking to negotiate rent relief for a new time period. Similarly, if a lessee is still negotiating under the previous Regulation, they can finish their negotiation. The National Code of Conduct refers to the parties negotiating for rent waivers as well rent deferrals. It also refers to when the lessee should commence paying down agreed rent deferrals. Fees are set by regulations. The NSW Government has announced a further extension to 28 March 2021. From 1 January 2021, the extended Regulation applies to retail lessees with an annual turnover of less than $5 million that have experienced a minimum 30 per cent decline in turnover for the 2020 December quarter (or 15 per cent in the case of not-for-profits). If an eligible lessee is finding it difficult to meet their lease commitments due to the COVID-19 pandemic, the lessee or their lessor can make a request to negotiate rent relief. Locking out a lessee can carry risk. Evidence theyâre receiving JobKeeper payments from 28 September 2020 (or evidence of at least a 30 per cent decline in turnover in the September quarter if the business is not receiving JobKeeper â or 15 per cent for not-for-profits). Individual lessors and lessees would normally negotiate their own lease arrangements. Leasing principle 8 in the Code of Conduct also refers to outgoings. Tenants may waive the requirement for a 50 per cent minimum waiver by agreement. Tax returns and/or Business Activity Statements to demonstrate an annual turnover less than $5 million in 2018-19; and A n examination notice is a form that is posted to th e other party after judgment telling them to give you information and documents about their income, assets and other debts. Â. From 1 January, the extended Regulation applies to retail lessees with an annual turnover of less than $5 million that have experienced a minimum 30 per cent decline in turnover for the 2020 December quarter (or 15 per cent in the case of not-for-profits). Yes, the NSW Government extended the protections under the Regulation to 28 March 2021 for eligible lessees. When making a deal with a lessor, it is important eligible lessees think about the medium to long-term, as well as the immediate future. They may also wish to apply for mediation with the Small Business Commissioner as soon as possible. Rental waivers must constitute no less than 50 per cent of the total reduction in rent payable under principle #3 above over the COVID-19 pandemic period and should constitute a greater proportion of the total reduction in rent payable in cases where failure to do so would compromise the tenantâs capacity to fulfil their ongoing obligations under the lease agreement. For more information about these measures, landlords and tenants can refer to the, The Law Society of NSW can assist parties to, COVID-19 (Coronavirus): information for small business owners, Making the decision to close your business, National Code of Conduct for commercial tenancies, Small Business Friendly Councils initiative, Improving local procurement opportunities, Support for subcontractors in building and construction, a 30 per cent decline in turnover in the September quarter, (July, August, September) relative to a comparable period in 2019 based on actual GST turnover rather than projected GST turnover (or 15 per cent decline for not-for-profits).Â. On 24 October, the NSW Government extended the protections under the Regulation for eligible lessees to 31 December 2020. For example, if a lessor backdates a rent increase to July 2020, and the lessee refused to pay the rent increase, the Regulation is likely to prevent the lessor from taking a prescribed action against the lessee, such as locking out the lessee or terminating the lease. Landlords must not draw on a tenantâs security for the non-payment of rent (be this a cash bond, bank guarantee or personal guarantee) during the period of the COVID-19 pandemic and/or a reasonable subsequent recovery period. Retrieving, providing access to and furnishing a copy of any document (otherwise than as provided for by items 8 and 10): Retrieving and providing access to, but not furnishing a copy of, any file or box of files, where the file or box of files is retrieved from an off-site storage facility, Supply of duplicate tape recording of sound-recorded evidence-per disc. Lists the service providers that usually work in the CTP scheme and workers compensation system. We are seeking to maximise the number of businesses that can resume normal operation once ⦠Tenants must remain committed to the terms of their lease, subject to any amendments to their rental agreement negotiated under this Code. Under the Regulation, it is compulsory for commercial lessors and lessees to undertake mediation before pursuing certain claims in the civil courts. The NSW Government understands the extension could place additional pressure on lessors, however, we are trying to share the load more evenly during these challenging times and ensure the economy can recover when restrictions are lifted. Landlords should where appropriate seek to waive recovery of any other expense (or outgoing payable) by a tenant, under lease terms, during the period the tenant is not able to trade. 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