Retail tenants and relief against forfeiture during COVID-19

If a tenant breaches a lease for non-payment of rent, there is a fundamental breach which gives a landlord the right to terminate the lease and take possession of the premises. However, a tenant has the right to apply to the court for an order restraining the landlord from doing so, otherwise known as relief against forfeiture. In the early stages of the COVID-19 pandemic, courts had yet to redefine the criteria used to award a tenant protection from the re-entry by their landlord. The High Court has previously applied a flexible approach to the instances where relief against forfeiture has been granted. However, how such principles that grant relief against forfeiture operate alongside constantly changing COVID-19 rules and regulations has been unclear. Would the courts extend the tenant’s rights and apply the right to relief more liberally? Sneakerboy Retail Pty Ltd v Georges Properties Pty Ltd [2020] NSWSC 996, decided by Justice Robb on 31 July 2020, goes someway to providing a list of considerations that clarify this issue in the current global health crisis. Background On…

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HONG KONG UPDATE: THE IMPACT OF THE NEW NATIONAL SECURITY LAW UPON HONG KONG BUSINESSES, INVESTORS AND FUTURE AUSTRALIAN VISA APPLICANTS

In a response to Hong Kong’s new National Security Law, Australian Prime Minister Scott Morrison has suspended the country’s extradition agreement, extended visas for the estimated 10,000 Hong Kong people residing in Australia and announced that Australia is “looking to recruit” Hong Kong businesses. The new security law effectively gives Beijing the power to shape the lives of both individuals and businesses in Hong Kong. Prime Minister Scott Morrison has said in a Press Conference on 9 July 2020 that there will be “new incentives and arrangements to attract export-orientated Hong Kong-based businesses to relocate to Australia, particularly where they have a strong potential for future growth and employment of Australians”, and that “through our global talent program… if there are businesses that wish to relocate to Australia, creating jobs, bringing investment, creating opportunities for Australia, then we will be very proactive in seeking to encourage that.” A 5 year temporary skilled visa with a pathway to permanent residency for future Hong Kong applicants will also be provided, subject to meeting an updated skills list and appropriate labour…

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STRATA UPDATE: ANOTHER WIN FOR OWNERS CORPORATIONS AGAINST AIRBNB

Further to our recent article about our team’s big NCAT victory in having an owner fined for Airbnb letting and winning a costs order (click here to view), a recent change in laws will have an even bigger impact on stopping short term letting. In the Estens decision from 2017, the Tribunal invalidated a short-term letting by-law, for breaching s139(2) of the Strata Schemes Management Act 2015 (SSMA), which says a by-law cannot prohibit or restrict the leasing of a lot.   Many were critical of aspects of that decision, and it did not set a precedent other NCAT Members had to follow.  However, that is all a moot point now.  Owners corporations can decide if they want to be a building that allows Airbnb.   Can a valid by-law ban short-term letting? This answer was not previously clear, but is now emphatically yes.  Section 137A of the Strata Schemes Management Act 2015, passed in August 2018 by both houses of NSW Parliament, is at last now in effect. Section 137A says a by-law may prohibit a lot…

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Strata E Alert: Finally, a win for Owners Corporations against Airbnb Owner

What can Owners Corporations do about Airbnb and short-term letting?  The Madison Marcus Strata team recently had a big win in NCAT against an owner who was conducting Airbnb contrary to by-laws. The offending owner was fined the maximum amount ($1,100), and had a costs order made against him.  The costs order was of far greater value than the penalty handed down.  This means owners corporations can obtain worthwhile orders, meaning breach of by-law proceedings are worth pursuing.  In the widely reported Estens decision from 2017, the Tribunal invalidated a short-term letting by-law, for breaching s139(2) of the Strata Schemes Management Act 2015 (SSMA), which says a by-law cannot prohibit or restrict the leasing of a lot.   In the Estens decision, the actual by-law was not produced.  Despite the win in our case, that issue from Estens remains.   The key questions for owners corporation are: Given the Estens decision, is there a way to draft a valid by-law to restrict short-term letting? What is the best strategy for an owners corporation to deal with short-term letting?…

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PLANNING E ALERT: REFORMS TO DEVELOPMENT CONTRIBUTIONS AND LEVIES

Back in November, the NSW Premier, Gladys Berejiklian, highlighted four crucial areas of reform to the NSW planning system for 2020, including addressing the uncertainty of developer contributions to propel investment in the sector. The Planning and Public Spaces Minister, Rob Stokes, considers this uncertainty and lack of transparency “the number one issue I hear from industry”. Mr Stokes has now announced the appointment of Productivity Commissioner Peter Achterstraat to undertake a review of the current contributions and offer recommendations for a new system by the end of this year.

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