On the 14th of July the New South Wales Government published the Retail and Other Commercial Leases (COVID-19) Regulation 2021.  The primary objective of these new regulations is to restrict the rights of landlords under retail and other commercial leases to take action for a breach of lease by the tenant if the tenant has been ‘impacted‘ by COVID-19.
A tenant is “impacted” if they qualify for one or more of the following grants; a Micro-business COVID-19 Support Grant; COVID-19 NSW Business Grant; or Job Saver Grant (Previously known as JobKeeper). A lessee must have turnover for the 2020-2021 financial year of not more than $50 million.
The new regulations cover any ‘prescribed breaches’ which occur between 13 July 2021 and 20 August 2021. A Prescribed breach includes a failure to pay rent, a failure to pay outgoings or if the business is not open for business during the trading hours stated in the lease.
The regulation mandates that a landlord must not take ‘prescribed action’ against an impacted tenant within this timeframe unless the Registrar has certified that mediation was unsuccessful in resolving the dispute.  “Prescribed action” refers to the landlord seeking orders or issuing proceedings for eviction, exercising a right of re-entry or recovery of the premises or land.
Unlike the arrangements which applied under the similar legislation in 2020, there are no current provisions dealing with deferred rent or waived rent.
If you would like to discuss how this change affects your retail or commercial lease, or your business generally, please call us on 9525 8688 or contact our Property Group Principal, Rebecca Flynn at rebecca@wmdlaw.com.au