Information for Tenants and Occupants impacted by COVID-19

INFORMATION FOR TENANTS AND OCCUPANTS

This information is current as of 26 November 2021 and will be updated if the Commonwealth Government or the ACT Government announce new measures or changes. Residential tenancy laws differ across the States and Territories and COVID-19 response measures are also based on local circumstances. You should always make sure the information you are relying on relates to the ACT. Please note that the effects of the changes discussed below will depend upon the circumstances of the individual residential tenancy agreement (including whether it is for a fixed term or periodic). You may wish to seek legal advice about your individual circumstances.

The COVID-19 response in the ACT has impacted individuals and households in our community in a number of ways. The ACT Government recognises that some of the lockdown requirements have caused financial distress and that some people may be subject to directions to quarantine for periods of time in their homes which could impact on their ability to vacate a tenancy. Some tenants and landlords may be having difficulties meeting their financial agreements or may be uncertain about their rights.

The ACT Government has taken steps to help reduce the risks of homelessness and financial hardship as a result of the COVID-19 public health emergency.

This information explains the residential tenancy response measures put in place by the ACT Government to assist tenants who are financially impacted by COVID-19 or are subject to quarantine directions.

Further information for landlords can be found here

Further information about rent relief grants can be found here

Do the COVID-19 emergency response measures change any of my rights or obligations?

As part of the emergency response measures, a number of temporary changes to the Residential Tenancies Act 1997 (the Act) were introduced with the commencement of the Residential Tenancies (COVID-19 Emergency Response) Declaration 2021 (No 3) (the declaration) on 2 September 2021. 

The declaration introduced temporary measures to protect households that have been identified as being impacted physically or financially by COVID-19. Some of these measures, including the eviction moratorium, ended on 25 November 2021. However, other support measures remain in place.

Measures remaining in place include:

  • a 12 week post moratorium transitional period protection which prevents evictions on the basis of debt accrued during the moratorium where rent is being paid when it falls due during the transition period; 
  • protection for households subject to a public health direction to quarantine or self-isolate from being required to leave their home during the quarantine period; 
  • restrictions on COVID-19 impacted tenants and impacted households being added to tenancy databases;
  • the ability for impacted households to end a fixed term tenancy early and without penalty by providing 3 weeks’ notice and evidence that they are so impacted;
  • allowing tenants from impacted households who had a termination and possession order suspended or warrant stayed during the moratorium period to apply to the ACT Civil and Administrative Tribunal (ACAT) to reconsider those orders at the end of the moratorium period in certain circumstances; 
  • the ability for landlords, tenants, grantors and occupants to negotiate reduced rent or occupancy fees or a deferral of rent payments;
  • a requirement for ACAT to consider making a payment order (a type of repayment plan) instead of an eviction order where a termination order is sought against an impacted household where they are not still protected by the eviction moratorium.

These measures will operate until 18 February 2022 - unless extended.

Measures which ended on 25 November 2021 include:

  • a 12 week moratorium on evictions for non-payment of rent where tenants are a COVID-19 impacted household
  • restrictions on physically accessing rental premises and changes to the way inspections should be performed
  • a relaxation on the time period for non-urgent repairs
  • a rental increase freeze for COVID-19 impacted households  
  • allowing tenants from impacted households who have had a termination and possession order made against them or a warrant for eviction issued, but who are still in their rental premises, to apply for the orders to be suspended during the moratorium period.

This means that inspections and timeframes for urgent repairs will now operate as normal. Evictions for non-payment of rent may also occur unless the transitional period protections apply (see further below).

What happens if I receive a notice to vacate that requires me to leave the property when I am subject to a public health direction to quarantine or self-isolate?

If you, or any member of your household, are directed to quarantine or self-isolate under a public health direction and a notice to vacate has been issued (for any reason) that takes effect during the quarantine period, you are not required to vacate the premises during your quarantine period. 

When the quarantine period ends, you can nominate a day you will vacate the property so long as it is not more than 2 weeks after the quarantine period ends. If you do not nominate a day, you must vacate within 2 weeks after the day the quarantine period ends, unless otherwise agreed with the lessor. You will still be required to pay rent until the day that you leave.

What happens if I issued a notice of intention to vacate that indicates I will leave the property, but I am now subject to a public health direction to quarantine or self-isolate?

If you have issued a notice of intention to vacate (you have told your landlord you intend to leave the property) and your intended date to leave falls within your quarantine period you must remain in the property to complete your quarantine period. You can withdraw your notice of intention to vacate and then issue a new notice for a new date outside your quarantine period on which you intend to leave the property. You will still be required to pay rent until the day that you leave.

What happens if ACAT has ended my tenancy or issued a warrant for my eviction, but I am subject to a quarantine direction or direction to self-isolate?

If ACAT has made a termination order or issued a warrant for your eviction and you or any member of your household, is directed to quarantine, you may apply to the ACAT to suspend the termination order to ensure you can comply with the direction to quarantine. The suspension will apply for up to 2 weeks after the end of the quarantine period.

When is a household impacted by the COVID-19 pandemic?

A number of the measures apply only to households that are COVID-19 impacted. A household is COVID-19 impacted if:

  • one or more rent-paying members of a household have lost income (or had a reduction in income) due to measures taken by any State, Territory or the Commonwealth in response to the COVID-19 pandemic (for example, COVID-19 business closures or stand-downs); or
  • one or more rent-paying members of a household have had to stop working or reduce work hours due to illness with COVID-19 or to care for a family member who is ill with COVID-19; and
  • on or after 12 August 2021:
    • the household’s or individual household member’s gross weekly income is 20% less than their income before it was stopped or reduced; or
    • a rent-paying household member has lost 8 hours of work or more.

Alternatively, a household is also impacted if a member of the household became eligible for the Commonwealth Disaster Payment or the ACT Government Small Business Grant on or after 12 August 2021. 

The post moratorium transitional period protection against eviction only applies to tenants in rent arrears on 25 November 2021 who were impacted households during the moratorium.

Certain other protections only apply to households that can demonstrate they were impacted by COVID-19 during either the moratorium or transitional period.

Are there any restrictions on listings in tenancy databases for households impacted by COVID-19?

If your household is impacted by the COVID-19 pandemic during the moratorium period, information about your failure to pay rent during that period must not be published in a residential tenancy database. 

This restriction remains after the end of the moratorium period if you remain in arrears for rent payable during the moratorium period.

Rent reductions or deferrals by mutual agreement

You can come to an agreement with your landlord to reduce or defer rent if you are suffering from financial hardship due to the COVID-19 pandemic. 

The mutual agreement can be given effect by:

  • Including a COVID-19 temporary rent reduction clause in the residential tenancy agreement (please see further detail on this clause below); OR
  • Including a COVID-19 temporary rent deferral clause in the residential tenancy agreement (please see further detail on this clause below); 

and

  • Providing a written confirmation of:
    • the agreed reduced rent; and 
    • the period the reduced rent applies.
What is the COVID-19 rent reduction clause?

The COVID-19 temporary rent reduction clause is an optional additional standard term that tenants and landlords may use to amend their existing tenancy agreement to give effect to an agreed rent reduction.  If you and your landlord voluntarily agree to include a rent reduction clause in your existing agreement it is taken to be a COVID-19 temporary rent reduction clause

The COVID-19 temporary rent reduction clause provides:

  1. The parties agree that because of financial hardship suffered by the tenant arising from the COVID-19 pandemic, for the period stated in writing by the parties the rent payable under the agreement is reduced to an amount stated in writing by the parties. 
    Note: Writing includes any way of representing or reproducing words in visible form including email or text message (see Legislation Act, dict, pt 1, def of writing).
  2. The parties may, in writing, extend the period in which rent is reduced for a further stated period if the tenant continues to suffer financial hardship because of the COVID-19 pandemic.
What is the COVID-19 rent deferral clause?

The COVID-19 temporary rent deferral clause is an optional additional standard term that tenants and landlords may choose to include that amends their existing tenancy agreement to give effect to an agreed rent deferral. 

If the rent deferral clause is included in a form other than in the form set out below, the clause will be taken to be a COVID-19 rent reduction clause. This is intended to provide certainty to both parties as to whether rent deferral or rent reduction is agreed. 

The COVID-19 rent deferral clause provides:

  1. The parties agree that because of financial hardship suffered by the tenant arising from the COVID-19 pandemic, for the period stated in writing by the parties the rent payable under the agreement is deferred for the period and for the amount stated in writing by the parties.
    Note: Writing includes any way of representing or reproducing words in visible form including email or text message (see Legislation Act, dict, pt 1, def of writing). 
  2. The parties may, in writing, extend the period in which rent is deferred for a further stated period if the tenant continues to suffer financial hardship because of the COVID-19 pandemic. 
  3. The parties agree that at the end of the period in which the rent is deferred, the amount of deferred rent is payable to the lessor in accordance with— 
    1. the arrangements agreed between the parties; or 
    2. if the parties cannot agree—the terms decided by the ACAT taking into account what is reasonable for both parties.
Are landlords required to agree to a rent reduction or deferral?

No. Landlords and tenants can come to an agreement about reducing or deferring rent but they are not required to do so. Where a rent deferral clause is voluntarily agreed to be included in your existing agreement it must be in the form set out by the COVID-19 rent deferral clause or it will be taken to be a rent reduction and not a deferral. This is intended to provide certainty to both parties as to whether rent deferral or rent reduction is agreed. If you and your landlord voluntarily agree to include a rent reduction clause in your existing agreement it is taken to be a COVID-19 temporary rent reduction clause.

What happens after the period of reduced rent ends?

You and your landlord can agree on an extension to the period, in writing, if you continue to suffer from financial hardship due to the COVID-19 pandemic.

If the reduced rent period is not extended, the rent payable reverts to the amount stated in the residential tenancy agreement. This return to the previous rent amount is not an increase in rent for the purposes of the Act. This means that the rent can return to its pre-COVID-19 amount without it counting towards the requirement that rents only be increased at intervals of more than 12 months or that the rent increases be limited to a prescribed amount or without the landlord needing to issue a notice that the rent will increase.  

Where you have agreed to a rent reduction, the reduced rent amount that was agreed to will not be rent arrears or a debt owed to your landlord.

What happens after the period of deferred rent ends?

You and your landlord can agree to extend the period by agreeing to the extension in writing you continue to suffer from financial hardship due to the COVID-19 pandemic.

If the deferred rent period is not extended, the rent payable will revert to the amount stated in the residential tenancy agreement. This reversion is not an increase in rent for the purposes of the Act. This means that the rent can return to its pre-COVID-19 amount without it counting towards the requirement that rents only be increased at intervals of more than 12 months or that the rent increases be limited to a prescribed amount and the landlord is not required to issue a notice that the rent will increase. The amount of the deferred rent is arrears and therefore a debt that is owed to your landlord. 

Where your rent has been deferred you should propose a payment plan to your landlord in relation to the deferred debt.  If you and your landlord are unable to agree either you or your landlord can apply to ACAT and ACAT can decide the repayment terms taking into account what is reasonable for both parties.

Reduction in occupancy fees by mutual agreement

If you are an occupant you can come to an agreement with your grantor to reduce your occupancy fees for a specified period if you are suffering from financial hardship arising from the COVID-19 pandemic.

The mutual agreement should specify the amount and duration of the fee reduction and be recorded in writing. Grantors and occupants may extend the period by agreeing to the extension if the occupier continues to suffer from financial hardship due to the COVID-19 pandemic.

If the period is not extended, the fee payable under the occupancy agreement reverts to the amount immediately before the fee was reduced. This reversion is not an increase in fee and the grantor does not need to issue a notice that the fee will return to its previous rate.

I am in an impacted household and want to end my tenancy early, what can I do?

Some tenants may wish to terminate their agreements if they have alternative housing options available. Any tenancy can be ended at any time by agreement between the landlord and tenant. If you cannot agree, your rights in relation to ending a tenancy will vary depending on whether you are in a fixed-term or periodic tenancy.

Terminating a periodic tenancy

If you have a periodic tenancy, you can terminate the agreement at any time (regardless of whether you are COVID-19 impacted) by giving the landlord at least 3 weeks written notice of your intention to vacate.  The tenancy will end on the date specified (assuming that date is at least 3 weeks after the notice is provided).

You do not have to pay any compensation to the landlord if you decide to end a periodic tenancy.  However, if you are in rental arrears, at the time you terminate your agreement you will still owe this money to your landlord.

You will need to go through the usual end of lease procedures in relation to an end of lease condition report and bond.  Speak to your landlord or real estate agent about how this can be done in a way that complies with any social distancing requirements.

Terminating a fixed term tenancy

If you are in a COVID-19 impacted household, you can give your landlord 3 weeks written notice that you want to end your fixed term tenancy early.  You will also need to provide your landlord with some evidence that you are a COVID-19 impacted household.  Evidence could include:

  • proof of eligibility for the Commonwealth COVID-19 Disaster Payment or the ACT Government Small Business Support Grant;
  • proof of job termination or stand-down such a letter or email from your employer;
  • proof of loss of work hours such as rosters showing a reduction in hours;
  • proof of prior and current income in a bank statement or payroll; or 
  • a statutory declaration which sets out how you have been impacted.

Your landlord will not be able to charge you a ‘break-lease’ fee if you terminate your agreement in these circumstances. However, if you are in rental arrears, at the time you terminate your agreement you will still owe this money to your landlord.

You will need to go through the usual end of lease procedures in relation to an end of lease condition report and bond.  Speak to your landlord or real estate agent about how this can be done in a way that complies with any social distancing requirements and any public health directions that may be in force.

The ability for COVID-19 impacted households to terminate their tenancy in this way will remain in place until the end of the transitional period.  After that time, the usual rules under the Residential Tenancies Act 1997 will apply again and you may need to pay compensation or a break lease fee to your landlord if you want to end a fixed term tenancy early after the end of the transitional period (18 February 2022 – unless extended).

I live in a share house and my housemate is no longer able to pay their rent, what can I do?

Where a co-tenant is unable to pay rent, other tenants who are on the lease remain jointly liable to pay rent.

If you are experiencing financial hardship as a household, you should contact your landlord or real estate agent in the first instance. You may be able to negotiate a rent reduction or to terminate your lease, even if it is a fixed term lease.

If you are a COVID-19 impacted household and were not able to pay rent during the moratorium period your landlord or agent is not able to list information about you in a residential tenancy database even where you still owe rent after the moratorium period.

The transition or grace period will operate for 12 weeks (26 November 2021 – 18 February 2022 – unless extended) and will provide tenants who were in COVID-19 impacted households during the moratorium a longer timeframe to pay their rental debts. The transition period will mean tenants will not be able to be evicted on the basis of arrears that accrued before or during the moratorium on the condition that they pay rent as it falls due during the transition period. If a tenant is unable to meet their rent payments as they fall due during the transition period, ACAT will be required to consider making a payment order rather than ordering an eviction for a tenant who was in a COVID-19 impacted household (a payment order is a form of Tribunal-ordered repayment plan).

The new changes to co-tenancy laws which came into effect in March 2021 now allow a single co-tenant to leave the tenancy while the agreement continues between the landlord and the remaining co-tenant(s).  In order for a co-tenant to leave the co-tenancy they must seek consent from the landlord and any other co-tenants.  The laws in relation to refusing consent vary depending on whether the agreement is a fixed term tenancy or a periodic tenancy.  For more information on ending a co-tenancy see the Renting Book.

I live in a share house and my housemate is no longer able to pay their rent, can I terminate the tenancy?

Where a co-tenant is unable to pay rent, other tenants who are on the lease remain jointly liable to pay rent. In this situation, some tenants may decide to terminate their agreement if they have alternative housing options available rather than make up any shortfall in rent, accrue debt or negotiate a rent reduction with their landlord. Your options for terminating a tenancy will depend on whether it is during the fixed term or periodic tenancy:

  • If you have a periodic tenancy, you can terminate the agreement at any time by giving the landlord at least three weeks written notice of your intention to vacate;
  • If you have a fixed term and your household meets the definition of COVID-19 impacted then you can also terminate your tenancy, without penalty, by giving your landlord 3 weeks written notice of your intention to vacate.  However, in a fixed-term tenancy you will also need to provide your landlord with evidence that your household is COVID-19 impacted (see above for further information).  This measure will be in place until the end of the transition period.  After that time the usual rules under the Residential Tenancies Act 1997 will apply. 

After the end of the transition period (18 February 2022 – unless extended), if you are in a fixed term tenancy you may negotiate to end your tenancy early by mutual agreement with your landlord or, if an agreement cannot be reached, you may need to pay a break lease fee or compensation to your landlord for the early termination of your agreement.

The new changes to co-tenancy laws which came into effect in March 2021 now allow a single co-tenant to leave the tenancy while the agreement continues between the landlord and the remaining co-tenant(s).  In order for a co-tenant to leave the co-tenancy they must seek consent from the landlord and any other co-tenants.  The laws in relation to refusing consent vary depending on whether the agreement is a fixed term tenancy or a periodic tenancy.  For more information on ending a co-tenancy see the Renting Book.

How has COVID-19 affected ACT Civil and Administrative Tribunal’s (ACAT) operating procedures?

For details about the arrangements ACAT has in place in response to COVID-19 emergency response, please see https://www.acat.act.gov.au/what-to-expect/changes-due-to-covid-19 . You can contact ACAT by email on tribunal@act.gov.au or by phone on (02) 6207 1740.

What is the Transition Period?

The transition or grace period provides tenants who are in arrears at the end of the moratorium with a longer period to repay these rent arrears before facing eviction.

The transition period will be in place for twelve weeks from the end of the moratorium period (26 November 2021- 18 February 2022 - unless extended). 

If you are in a COVID-19 impacted household and are in rent arrears at the end of the moratorium period, your landlord will not be able to evict you on the basis of those arrears during the transition period so long as you pay your rent as it falls due throughout the transition period.

Does the Transition Period apply to me?

The transition period operates from 26 November 2021 to 18 February 2022 (unless extended). It applies to households that can demonstrate that they were impacted by COVID-19 during the moratorium period (2 September -25 November 2021).

What happens if I don’t pay my rent during the transition period?

If you do not pay your rent as it falls due during the transition period, then your landlord will be able to take the usual steps under the Residential Tenancies Act 1997 to end your tenancy. However, if your landlord applies to the ACT Civil and Administrative Tribunal (ACAT) for a termination and possession order and you are in an COVID-19 impacted household, ACAT must consider making a payment order before they make a termination and possession order on the basis of your rent arrears (see further below).

If you fall into rental arrears during the transition period, you may wish to seek legal advice about your rights from the Legal Aid Tenancy Advice Service on 1300 402 512 (see further details below).

What is a payment order and when can ACAT make one?

A payment order is an order that the ACT Civil and Administrative Tribunal (ACAT) can make instead of making a termination and possession order (an eviction order) when the landlord has applied to ACAT to end the tenancy on the basis of rent arrears.  A payment order allows a tenancy to continue and is an order that the tenant pay their rent plus a specified amount towards the arrears.  In other words, it gives the tenant another chance to save their tenancy.

If you are a tenant from a COVID-19 impacted household, ACAT will be required to consider if a payment order is appropriate for you before they can make a termination and possession order.  ACAT will still need to be satisfied that you will be reasonably likely to be able to comply with a payment order before they can make the order.

If you breach a payment order (by failing to pay your rent and any arrears amount specified in the order) your landlord can apply to ACAT to have your tenancy terminated.  They do not need to serve you with a new notice to vacate before they make this application.

If your landlord makes an application to ACAT for a termination and possession order you may wish to seek legal advice about your rights from the Legal Aid Tenancy Advice Service on 1300 402 512 (see further details below).

I applied to have a termination order or warrant suspended during the moratorium – what can I do now?

At the end of the moratorium period, ACAT may vary or set aside pre-moratorium orders if it is satisfied that, since the order was made, the tenant has paid part or all of the rent arrears (or the tenant can otherwise demonstrate that their financial circumstances have improved) and the tenant is reasonably likely to pay future rent as it becomes payable.

If you are in this situation, you will need to make an application to ACAT to have the orders varied or set aside before the orders come into effect. Seek legal advice about your rights from the Legal Aid Tenancy Advice Service on 1300 402 512 (see further details below).

Land tax credit for your landlord where they provide you a rent reduction

If you find you are struggling to meet your rental payments due to COVID-19, you may wish to talk to your landlord about the ACT Government’s COVID-19 Residential Land Tax Tenancy Relief Scheme.

Under this scheme, if your landlord chooses to reduce the rent on your principal place of residence by at least 25% for at least 4 weeks during the period of 1 August to 31 December 2021 the ACT Government will provide your landlord 50% of the rent reduction in land tax credits to a maximum of $100 per week. The baseline for the 25% reduction is the rent payable on the property during the month immediately prior to the rent reduction.

For example, if you are renting your property for $600 per week and your rent is reduced by $200 per week (a 33.3% reduction), your landlord may be eligible to receive a credit of $100 per week.

To benefit from this scheme, it must be a genuine rent reduction without a requirement for you to pay the rent reduction amount back to your landlord in the future. Your landlord also cannot claim the difference from you at a later date.

The government’s share of the rent reduction will be provided to your landlord through a credit on their land tax bills.

Further eligibility details and an online application form are available through the ACT Revenue Office website. Applications must be completed by 28 February 2022.

Rent Relief Fund

The ACT Government has established a Rent Relief Fund of $133,000 to support eligible tenants or occupants who are having difficulties paying their rent or occupancy fees.  It will provide one-off grants of up to $1000 to eligible ACT tenants or occupants in private or community housing tenancies or occupancies who are experiencing rental stress or severe financial hardship. The Fund is designed to assist eligible households to maintain safe, secure and stable accommodation.

Each grant will be paid directly to the lessor or grantor as a contribution to the tenants’ or occupants’ rent or occupancy fees.

For more information about the Rent Relief Fund or to find out if you are eligible click here.

The Rent Relief Fund is administered by Care Financial Counselling Service (Care) on behalf of the ACT Government. To apply, contact Care by phone on 0466814 390 or 62571788 or email microfinance.admin@carefcs.org or visit their website  https://www.carefcs.org/ Care have developed an online smart form which can also be emailed or posted if required.

Where can I go for help?

Advice for Private Tenants and Occupants

Contact the Legal Aid Tenancy Advice Service on 1300 402 512 or find out more information on their website: https://www.legalaidact.org.au/tasact

Advice about Social Housing or Eligibility for Centrelink payments

Contact Canberra Community Law on 02 6218 7977 or find out more information on their website: https://www.canberracommunitylaw.org.au/

For information about the on-off payment to support social housing tenants, please visit the Housing ACT website.

Relevant Legislation

To access the relevant legislation, click on the links below:

Residential Tenancies Act 1997

Residential Tenancies (COVID-19 Emergency Response) Declaration 2021 (No 3)