Ending of the Rental Emergency Period
On 23 April 2020 the State Government introduced the Residential Tenancies (COVID-19 Response) Bill 2020, effective 30 March 2020 to 28 March 2021. What we refer to as “normality” is returning as we revert back to the Residential Tenancies Act 1987. As we make this transition, there are some key and interesting points to consider:
What happens with matters that are currently being conciliated through DMIRS?
These matters cannot be withdrawn and must be conciliated through DMIRS.
For existing rent arrears, can I wait until 29 March and go straight to court?
No, if there are rent arrears in place on 28 March 2021 then the resolution of these matters must go through the conciliation process. It is our understanding that existing unresolved rental arrears (prior the legislation ending) must be conciliated through DMIRS until 30 June 2021.
If there are not any rent arrears on 28 March 2021 and the tenant subsequently goes into arrears, then can the matter go to court?
Yes, just follow the normal processes under the Residential Tenancies Act of issuing default notices.
Are existing rental arrears the only matters that have to go through the DMIRS conciliation?
Yes, any other matters will not be accepted.
If there is an unrectified breach that occurred during the emergency period e.g. causing a nuisance, then can I now proceed to court?
Yes, but it would be prudent to issue a new breach notice.
A tenant has been given a termination notice for a vacate date on 29 March 2021 but is saying that they cannot find alternative premises. What can I do?
If the lessor is unable to extend the lease by even a short period, then you have no choice but to confirm with the tenant that the termination date cannot be extended. If you are unable to find a suitable resolution, the Department of Mines, Industry Regulation and Safety (DMIRS) have compiled a list of organisations who may be able to assist with emergency situations.
View the DMIRS emergency accommodation brochure here.
What if the tenant has been given a termination notice but refuses to provide vacant possession?
The tenant cannot be forcibly removed unless the Magistrates court has issued an order under section 80 of the Residential Tenancies Act. You will need to apply to Court for possession of the property.
The rented property has been sold and the tenant has been given a termination notice but will not move out. What is going to happen to settlement?
If the contract requires the buyer to have vacant possession at settlement, then the seller will be unable to satisfy the contractual obligations. The buyer and seller should seek legal advice.
Are there any remaining rent control measures?
No, on 29 March 2021 there will not be any rent control measures. Rents will be subject to the market forces of supply and demand.
Notices for rent increases have already been given, when do those notices take effect?
The tenant will be required to commence paying the new rent amount on 29 March 2021. The tenant may need to be reminded of the increase, the date that is payable and the total amount payable on the payment date.
What are the notice periods for rent increases?
The notice periods are as provided by the RTA.
What happens if the tenant is saying that the rent is excessive?
To overcome any concerns, the tenant can be given information on current rents in the locality for similar properties.
If the tenant remains dissatisfied with the proposed rent for a periodic tenancy and any negotiations have failed to achieve an agreeable outcome, then the tenant has the opportunity to terminate the lease with 21 days’ notice.
A tenant may also under section 32 of the RTA apply to the Magistrates Court seeking an order declaring that the rent is excessive. When deliberating this matter, the Court has to take a number of things into account, including:
- the general level of rents for comparable properties in the locality,
- the estimated capital value of the premises,
- the amount of the outgoings in respect of the premises required to be borne by the lessor,
- the estimated cost of any services provided by the lessor or tenant under the agreement, and
- the value and nature of any chattels provided with the premises for use by the tenant.
Under a fixed term tenancy agreement, what rent increases are permitted?
Under a fixed term tenancy agreement, any rent increases during the term of the tenancy would have been agreed to when the lease was first signed. You should refer to the tenancy agreement to determine what has been agreed. Any increases negotiated prior can now be implemented. If the fixed term lease agreement does not provide for rent increases, the rent cannot be increased.
If there is a rent increase method in the lease do you apply this method or comparative market analysis?
You can only apply the method that has been agreed to in the lease.
When can a mortgagee terminate a tenancy agreement?
A mortgagee who has taken possession of a property will be able to give a notice to vacate on 29 March 2021