NSW emergency legislation

March 30, 2020

Uncategorized

In an earlier post we referred to NSW legislation giving the Minister power to create emergency regulations to prevent the termination of leases during the COVID-19 crisis.

The NSW legislation is now available here: https://www.legislation.nsw.gov.au/acts/2020-1.pdf

The text relevant to commercial and retail tenancies is set out below.

It is worth noting that:

  1. Although a state-by-state approach has been suggested, we can expect something similar in Victoria.
  2. The NSW legislation only allows the creation of regulations by the Minister.  We have yet found any regulations made under the new powers, but they are expected any day now.
  3. The legislation allows the creation of regulations that prevent termination for more than just non-payment of rent.  For example:
    • the new sub-s 87(1)(a) of the Retail Leases Act 1994 (NSW) allows regulations that prohibit any terminations;  and
    • the new s 87(1)(c) of the Retail Leases Act 1994 (NSW) allows regulations to regulate or prevent the exercise of another right of a lessor or owner of premises or land … in particular circumstances’. This could, for instance, be used to create regulations preventing a landlord calling on a guarantee during the pandemic or suing under a personal guarantee or indemnity.
  1. The legislation allows regulations under residential, retail and agricultural tenancies, as well as ‘any other Act relating to the leasing of premises or land for commercial purposes’.  It is not clear what that additional legislation could be.  However:
    • in Victoria, Part II, Division 5 of the Property Law Act 1958 (Vic) regulates leases and tenancies generally;  and
    • in Victoria, the Retail Leases Act 2003 (Vic) has broader application than its NSW counterpart in light of the operation of the ‘ultimate consumer test’.
  1. The regulations sunset after 6 months.

The text of the NSW legislation amending the Residential Tenancies Act 2010 (NSW) is set out below.

2.17 Residential Tenancies Act 2010 No 42 Part 13

Insert after Part 12—

Part 13 Response to COVID-19 pandemic 229 Regulation-making power

(1)  The regulations under any relevant Act may provide for the following matters for the purposes of responding to the public health emergency caused by the COVID-19 pandemic—

(a)  prohibiting the recovery of possession of premises by a landlord, owner or proprietor of premises from a tenant or resident of the premises under the relevant Act in particular circumstances,

(b)  prohibiting the termination of a residential tenancy agreement, occupancy agreement or site agreement by a landlord, proprietor of premises or operator of a community under the relevant Act in particular circumstances,

(c)  regulating or preventing the exercise or enforcement of another right of a landlord, proprietor of premises or operator of a community by the landlord, proprietor or operator under the relevant Act or an agreement relating to the premises,

(d)  exempting a tenant, resident or home owner, or a class of tenants, residents or home owners, from the operation of a provision of the relevant Act or any agreement relating to premises.

(2)  The Minister may recommend to the Governor that regulations be made under this section only if—

(a)  Parliament is not currently sitting and is not likely to sit within 2 weeks after the day the regulations are made, and

(b)  in the Minister’s opinion, the regulations are reasonable to protect the health, safety and welfare of tenants or residents under the Act.

(3)  Regulations made under this section are not limited by the regulation-making power in a relevant Act.

(4)  Regulations made under this section expire on—

(a)  the day that is 6 months after the day on which the regulation commences, or

(b)  the earlier day decided by Parliament by resolution of either House of Parliament.

(5)  In this section—

occupancy agreement has the same meaning as in the Boarding Houses Act 2012.

operator of a community has the same meaning as in the Residential (Land Lease) Communities Act 2013.

proprietor has the same meaning as in the Boarding Houses Act 2012.

relevant Act means any of the following—

(a)  Boarding Houses Act 2012,

(b)  Residential (Land Lease) Communities Act 2013,

(c)  Residential Tenancies Act 2010,

(d)  any other Act relating to the leasing of premises or land for residential purposes.

site agreement has the same meaning as in the Residential (Land Lease) Communities Act 2013.

The text of the NSW legislation amending the Retail Leases Act 1994 (NSW) is set out below.

2.18 Retail Leases Act 1994 No 46 Part 11

Insert after Part 10—

Part 11 Response to COVID-19 pandemic 87 Regulation-making power

(1)  The regulations under any relevant Act may provide for the following matters for the purposes of responding to the public health emergency caused by the COVID-19 pandemic—

(a)  prohibiting the recovery of possession of premises by a lessor or owner of premises or land from a lessee or tenant of the premises or land under the relevant Act in particular circumstances,

(b)  prohibiting the termination of a lease or tenancy by a lessor or owner of premises or land under the relevant Act in particular circumstances,

(c)  regulating or preventing the exercise or enforcement of another right of a lessor or owner of premises or land under the relevant Act or an agreement relating to the premises or land in particular circumstances,

(d)  exempting a lessee or tenant, or a class of lessees or tenants, from the operation of a provision of the relevant Act or any agreement relating to the leasing or licensing of premises or land.

(2)  The Minister may recommend to the Governor that regulations be made under this section only if—

(a)  Parliament is not currently sitting and is not likely to sit within 2 weeks after the day the regulations are made, and

(b)  in the Minister’s opinion, the regulations are reasonable to protect the health, safety and welfare of lessees or tenants under the Act.

(3)  Regulations made under this section are not limited by the regulation-making power in a relevant Act.

(4)  Regulations made under this section expire on—

(a)  the day that is 6 months after the day on which the regulation commences, or

(b)  the earlier day decided by Parliament by resolution of either House of Parliament.

(5)  In this section—
relevant Act means any of the following—

(a)  Agricultural Tenancies Act 1990,

(b)  Retail Leases Act 1994,

(c)  any other Act relating to the leasing of premises or land for commercial purposes.

Sam Hopper and Abilene Singh

About Sam Hopper

Sam is a property and insolvency barrister.

View all posts by Sam Hopper

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  1. Tasmanian emergency legislation for Covid-19 affecting landlords and tenants | Sam Hopper Barrister - April 6, 2020

    […] Although not as broad, it adopts a similar model to that adopted by the NSW Parliament (discussed in an earlier post here: https://samhopperbarrister.com/2020/03/30/nsw-emergency-legislation/). […]

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