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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How COVID-19 has impacted tenants’ and landlords’ rights: Residential Tenancies (Amendment) COVID-19 Regulation

The Residential Tenancies (Amendment) COVID‑19 Regulation 2020 generally prohibits, until 14 October 2020, subject to further extension (the moratorium period), a landlord from giving a tenant who is a member of a household financially impacted by the COVID‑19 pandemic (an impacted tenant) a termination notice for non‑payment of rental charges and provides that during the moratorium period a landlord may only evict an impacted tenant for non‑payment of rent or charges if: the landlord gives a termination notice or applies for a termination order at least 60 days after the commencement of the regulation the landlord and impacted tenant had participated in good faith in a formal rent negotiation process about the rent or charges payable it is fair and reasonable in the circumstances of a case for the landlord to give the termination notice or apply for the order. The Regulation requires a landlord under a residential tenancy agreement to give at least 90 days’ notice of the termination of: a fixed term tenancy at the end of the term a periodic tenancy a tenancy because of…

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