Information for Tenants and Occupants impacted by COVID-19

The moratorium commenced on 22 April 2020 and will be in place for six months to 22 October 2020 consistent with National Cabinet’s announcement.

All other rights and obligations under residential tenancy and occupancy agreements remain the same.

Households that can demonstrate that they are impacted by the COVID-19 pandemic cannot be evicted because of their failure to pay rent during the moratorium period (22 April – 22 October). If you fell into rent arrears before the commencement of the moratorium period, you may still be covered in certain circumstances (see further below).

Tenants who are not impacted by the COVID-19 pandemic must continue paying rent in full and honour their existing residential tenancy agreement.

For impacted households, during the moratorium period landlords must not:

• issue a notice to vacate or termination notice because of the tenant’s failure to pay rent;
• apply for a termination and possession order or a payment order; or
• apply for a warrant for the eviction of a tenant.

Evictions can still occur on other grounds.

The moratorium period will be followed by a transition or grace period which will commence on 23 October 2020 and operate until 31 January 2021 (unless extended) (see further below).

Some support measures apply to all tenancies, other supports are limited to those impacted to COVID-19.  Who the various measures apply to is explained in further detail below.

The moratorium applies to households that can demonstrate they are impacted by COVID-19 in the following ways:

1. A member of the household became eligible for the JobSeeker or JobKeeper payment from the Commonwealth on or after 20 March 2020 OR
2. Where the household income (inclusive of any government assistance) has reduced by 25% or more due to:

• one or more rent-paying members of the household being impacted by 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.

The transition period applies to households who were impacted by COVID-19 during the moratorium period (22 April to 22 October 2020).

The following support measures will also be available to households who were COVID-19 impacted during the moratorium period as well as those who become COVID-19 impacted between 23 October 2020 and 31 January 2021:

• the ability to negotiate a temporary rent reduction; and
• the ability to terminate a fixed term tenancy early without penalty.

You can provide documents which evidence that you are impacted by COVID-19 to your landlord or agent such as:

• proof of eligibility for JobSeeker or JobKeeper payment;
• 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
• making a statutory declaration.

In the event a Notice to Vacate for rent arrears is issued by your landlord, it will not be valid during the moratorium period (22 April to 22 October 2020) for impacted households. Further, if a landlord applies to the ACT Civil and Administrative Tribunal (ACAT) for a termination and possession order, ACAT can consider your evidence of being a COVID-19 impacted household. If ACAT is satisfied that you are COVID-19 impacted, then they will not be able to terminate your tenancy during the moratorium period.

If you were an impacted household during the moratorium period and are issued a Notice to Vacate during the transition period (23 October to 31 January 2021) on the basis of rent arrears that accrued before 22 October 2020 (moratorium arrears), then the Notice to Vacate will not be valid if you are paying your rent as it falls due during the transition period. ACAT will not be able to evict you on the basis of your moratorium arrears.  However, if you fail to pay your rent as it falls due during the transition period, then the Notice to Vacate may be valid and your landlord may be able to apply to ACAT for a termination and possession order. However, ACAT will be required to consider making a payment order as an alternative to eviction (see further information on payment orders below).

You can seek free legal advice about your rights from the Legal Aid Tenancy Advice Service on 1300 402 512 (see further details below).

If your landlord made an application for your eviction because you were behind in rent before 22 April 2020 and you have been given an ACAT hearing date, you should still attend the hearing (or dial in, if it is being held via teleconference). If you are in a COVID-19 impacted household, you can ask that the ACT Civil and Administrative Tribunal (ACAT) delay making a decision on the eviction until the end of the moratorium period (22 October 2020).

After the moratorium period has ended your matter may be relisted.  However, if you were in a COVID-19 impacted household during the moratorium ACAT will be required to consider making a payment order before they can make a termination and possession order (see further information on payment orders below).

You can seek free legal advice about your rights from the Legal Aid Tenancy Advice Service on 1300 402 512 (see further details below).

Between 22 April 2020 and 22 October 2020, the ACT Civil and Administrative Tribunal (ACAT) may suspend existing orders (made prior to the moratorium period) (pre-moratorium orders) in relation to a failure to pay rent for a stated period of not more than the moratorium period if:

• the tenant is a member of an impacted household; and
• the tenant has not vacated the premises.

If you are in this situation, you will need to make an application to ACAT to have the orders suspended. 

From 23 October 2020, 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. Seek legal advice about your rights from the Legal Aid Tenancy Advice Service on 1300 402 512 (see further details below).

Yes, you still need to pay back any rental arrears. This may be a reduced amount if you have negotiated with your landlord or agent for a reduction in rent. If you were in a COVID-19 impacted household during the moratorium period, the transition period (23 October 2020 to 31 January 2021) will give you a longer period in which to repay your arrears before you can face eviction due to those arrears.  However, you will only retain the benefit of the transition or grace period protection if you pay your rent as it falls due during the transition period.

If you are in a COVID-19 impacted household your landlord cannot increase your rent during the moratorium period (22 April to 22 October 2020).

The rental increase freeze for COVID-19 impacted households will operate until 22 October 2020. After that, rent increases will once again be allowed to occur in accordance with the Residential Tenancies Act 1997 (RTA). The RTA limits rental increases to 1 increase in each 12-month period (since the commencement of the tenancy or the last rental increase, whichever was most recent).  It also contains some limitations on how much the rent can be increased by and prevents excessive rent increases. A factsheet about excessive rent increases is available here.

If your landlord indicates that they want to increase your rent, 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).

On 6 April 2020 an amendment to the Residential Tenancies Act 1997 commenced which reduced the amount of rent that a landlord could require a tenant to pay in advance from 1 month to 2 weeks.  This change already applies to all periodic tenancies and any fixed term tenancy that commenced after 6 April 2020.

From 14 September until 31 January 2021 this change will also apply to fixed term tenancies that commenced before 6 April 2020.

In all cases, while a tenant cannot be required to pay more than 2 weeks rent in advance, the tenant is able to nominate a longer period for payment in advance should they wish to do so.  The option to pay more than two weeks in advance would only arise when proactively nominated by the tenant, not at the suggestion or request of the lessor.

If a household is impacted by the COVID-19 pandemic, information about a tenant’s breach of a residential tenancy agreement during the moratorium period must not be published in a residential tenancy database if the breach relates to a failure to pay rent under the agreement.

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

Landlords and tenants may come to an agreement to reduce rent if the tenant is suffering from financial hardship due to the COVID-19 pandemic.

Between 22 April 2020 and 31 January 2021, the mutual agreement can be given effect by:

• Including a COVID-19 temporary rent reduction clause in the residential tenancy agreement; and
• Providing a written confirmation of:
  • the agreed reduced rent; and
  • the period the reduced rent applies.

If you are still in financial hardship at the end of the agreed rent reduction period, you can ask your landlord if they are willing to extend the rent reduction period.

The Conflict Resolution Service is available to provide a restorative, free mediation service for tenants and landlords in the ACT who are experiencing financial issues arising out of COVID-19. If you are interested in negotiating a rent reduction and would like to participate in mediation, you can contact the Conflict Resolution Service via crs.org.au or by phone on (02) 6189 0590. CRS also offer a drop-in service for residential tenants and landlords on Tuesdays and Thursdays from 9.00am to 1pm at Onelink/Housing ACT (corner of Emu Bank and Benjamin Way, Belconnen).

The COVID-19 temporary rent reduction 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 reduction.

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.

The ability to include a temporary rent reduction clause in your agreement will remain in place until 31 January 2021.  Until 31 January 2021 landlords and tenants may extend an initially agreed rent reduction period by agreeing to an extended period in writing if the tenant continues 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 reversion is not an increase in rent for the purposes of the Residential Tenancies Act 1997. 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.

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, until 31 January 2021, 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 JobSeeker or JobKeeper payment;
• 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.

The ability for COVID-19 impacted households to terminate their tenancy in this way will remain in place until 31 January 2021.  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 31 January 2021.

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 your share house meets the definition of being COVID-19 impacted, you cannot be evicted for failure to pay rent during the moratorium period (22 April – 22 October 2020). However, you will still owe any unpaid rent as a debt to the landlord unless you have negotiated a rent reduction.

Any failure by you to pay rent during the moratorium period does not allow a landlord or agent to list information about you in a residential tenancy database, even after the moratorium period has ended, even where you still owe rent after the moratorium period.

After the moratorium period, a transition or grace period will operate from 23 October 2020 to 31 January 2021 which will provide tenants who were in COVID-19 impacted households a longer timeframe to pay their rental debts as they 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).

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 31 January 2021.  After that time the usual rules under the Residential Tenancies Act 1997 will apply. 

After 31 January 2021, 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 Conflict Resolution Service (CRS) provides a free restorative residential tenancy mediation service to COVID-19 impacted tenants and landlords in the ACT on behalf of the ACT Government. CRS is a long-standing, trusted provider of mediation services in the ACT community. The residential tenancy mediation service aims to resolve rental disputes between tenants and landlords including in relation to reaching agreements to reduce rent. 

The CRS can work with parties to resolve their dispute through a facilitated discussion, negotiate options and work to agree on a path forward. The CRS will also help to capture in writing the outcome of any agreement between the parties in dispute.

Where parties do not wish to proceed to formal mediation, the CRS can also be contacted by COVID-19 impacted tenants and landlords for guidance on how to resolve residential tenancy disputes themselves. This might include advice on approaches for proactively and constructively raising concerns and developing mutually agreeable solutions.  Parties can obtain more information about the residential tenancy mediation service on the CRS website crs.org.au or by phone on (02) 6189 0590. 

From 4 August 2020, parties can also access a drop-in service at the Housing ACT shop front, at the corner of Emu Bank and Benjamin Way, Belconnen. The drop-in service is available for in-person enquiries on Tuesdays and Thursdays between 9:00am and 1:00pm.

Parties to an occupancy agreement may also agree to reduce occupancy fees for a specified period if an occupant suffers 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.

This measure will remain in place until 22 October 2020.  After that time, parties to an occupancy agreement are still able to amend the terms of their agreement by mutual agreement.

Grantors and occupants may extend the period by agreement if the occupant continues to suffer 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.

This measure will remain in place until 22 October 2020.

If landlords and tenants or grantors and occupants arrive at a mutual agreement for a reduction in the rent or fee payable by the tenant or occupancy for a specified period, the difference in reduced rent or fee and the amount immediately before the rent or fee was reduced cannot be claimed by the landlord or grantor as arrears or debt for that period.

In all tenancies, restrictions have been put in place on the ability of landlords and agents to access premises during the COVID-19 emergency to assist in meeting social distancing measures.

These measures mean that a landlord or agent cannot physically access any rental premises between 22 April -22 October 2020 unless:

• they have the tenant’s consent; or
• it is necessary to do urgent repairs to the premises; or
• it is in accordance with an order by the ACT Civil and Administrative Tribunal.

These measures will remain in place until 22 October 2020.  After that time, the usual rules under the Residential Tenancies Act 1997 will apply.

In all tenancies, landlords and agents are encouraged to conduct ‘virtual’ inspections of the premises using audio-visual or other electronic means in order to avoid physically accessing the premises during the moratorium period (22 April -22 October 2020).

Where a tenant does not consent, a landlord or agent is prevented from physically accessing any rental premises to undertake an inspection unless:

• the tenant has already moved out of the property; or
• the tenant fails to provide reasonable assistance to the landlord or agent to enable the virtual inspection to be done.

If you do not provide reasonable assistance to facilitate virtual inspections, your landlord could apply to the ACAT for an order that access be provided (see further information below).

Where physical inspections are undertaken, steps to protect the health and safety of the tenants and people visiting during an inspection should be considered. For example, landlords or agents may need to:

• provide sanitiser or hand wash for people attending an inspection;
• as far as practicable, ensure no one touches anything during the inspection;
• if necessary, disinfect doorknobs or other surfaces where touching is required after the inspection has been finalised;
• comply with distancing and requirements and restrictions on the number of people present.

These measures will remain in place until 22 October 2020. After that time the usual rules in relation to inspections under the Residential Tenancies Act 1997 will apply.

In all tenancies, where urgent repairs need to be undertaken at the premises, a landlord or agent is still permitted to physically access the premises.

Clause 60 of the standard residential tenancy terms outlines what constitutes urgent repairs. This includes, for example, repairs to a burst water service, a dangerous electrical fault or a gas leak.

Where non-urgent repairs need to be undertaken at any rental premises, this repair must be undertaken within a reasonable period as agreed to between the landlord or agent and tenant.

In deciding what is a reasonable period, the landlord or agent and tenant must have regard to the nature of the repair, the extent of access required to the premises to do the repair, and the hardship suffered by the tenant by the repairs not being done.

Where repairs are undertaken, landlords and tenants both need to be aware that it may be difficult to source tradespeople at this particular time. Tenants, landlords and tradespeople may also need to discuss how best to manage social distancing requirements while any work is undertaken.

This measure will operate until 22 October 2020. This means that from 23 October 2020, the usual rules under the Residential Tenancies Act 1997 will apply and non-urgent repairs will need to be completed within 4 weeks of the landlord being notified of their need.

Tenancy and occupancy disputes (including applications to terminate agreements on the basis of hardship) can be resolved through the ACT Civil and Administrative Tribunal (ACAT). ACAT provides essential services and is still operating, although its capacity may be reduced due to the pandemic. However, ACAT has made changes to its procedures to manage COVID-19 social distancing requirements and to prioritise more urgent matters. Most residential tenancy applications, including termination applications, will continue to be listed. There may be delays for non-urgent matters.

For details about the arrangements ACAT has in place during the 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.

The ACT Government has put in place measures to continue to support tenants and landlords and to provide a smooth transition out of the moratorium.

These measures are:

• a transition period which limits evictions on the basis of rent arrears for COVID-19 impacted households in certain circumstances;
• the continued ability to negotiate reduced rent;
• a requirement for the ACT Civil and Administrative Tribunal (ACAT) to consider making a payment order instead of an eviction order for COVID-19 impacted household;
• the continued ability for a tenant in a COVID-19 impacted household to terminate their fixed-term tenancy agreement early and without penalty;
• continued restrictions on a negative listing being made about a person from a COVID-19 impacted household on tenancy databases;
• the ability for a tenant from a COVID-19 impacted household who had previous ACAT orders suspended during the moratorium to apply to ACAT to vary or set aside those orders;
• the continued ability for tenants on pre 6 April 2020 fixed-term tenancies to pay just two weeks rent in advance (all other tenants are already able to do this).

These measures will be in place on 23 October after the eviction moratorium has ended and will operate until 31 January 2021 (unless extended).

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 they can face eviction.

The transition period will be in place from the 23 October 2020 - 31 January 2021 (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.

The transition period applies to households that can demonstrate that they were impacted by COVID-19 during the moratorium period (22 April to 22 October 2020) in the following ways:

1. A member of the household became eligible for the JobSeeker or JobKeeper payment from the Commonwealth on or after 20 March 2020 OR
2. Where the household income (inclusive of any government assistance) had reduced by 25% of more due to:
   1. one or more rent-paying members of the household being impacted by 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
   2. 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.

See above for the types of evidence you are able to provide in order to demonstrate that you were a member of an impacted household during the moratorium 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).

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.

Before making a payment order, ACAT must be satisfied that the tenant will be reasonably likely to make the payments required under the payment order.

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).

From 23 October 2020, 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).

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 2020 (No 2) (the moratorium declaration)

Residential Tenancies (COVID-19 Emergency Response) Declaration 2020 (No 3)(the transition period declaration)