Information for Tenants and Occupants impacted by COVID-19

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

However, if you fell behind in your rent before 22 April 2020 and your landlord has already issued you with a notice to vacate or if you have had an eviction order or warrant issued against you, you may still be covered by the moratorium if you have not moved out of the property yet (see further below).

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 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% 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 COVID19.

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 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. You can seek free legal advice about your rights from the Tenants 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.

The changes to the law mean that the ACT Civil and Administrative Tribunal (ACAT) may suspend existing orders (made prior to the moratorium period) 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. Seek legal advice about your rights from the Tenants 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 are in a COVID-19 impacted household your landlord cannot increase your rent during the moratorium period.

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.

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, 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.

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.

Landlords and tenants may extend the period by agreeing to the extension in writing if the tenant continues to suffer from financial hardship due to the COVID-19 pandemic.

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 (3 months). 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.

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, you can negotiate with your landlord to agree to end the tenancy early with their agreement, pay a break lease fee or apply to the ACT Civil and Administrative Tribunal (ACAT) to terminate the lease on hardship grounds.

The Conflict Resolution Service (CRS) is available to provide a restorative free residential tenancy mediation service. CRS is a long-standing, trusted provider of mediation services in the ACT community. The service aims to resolve rental disputes between tenants and landlords in the ACT who are impacted by COVID-19, including in relation to reaching agreements to reduce rent.

The CRS will 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.

Parties can register to participate in the residential tenancy mediation on the CRS website crs.org.au or by phone on (02) 6189 0590. Further information about what parties need to do to prepare for mediation is also available on the CRS website.

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.

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.

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.

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 new measures mean that a landlord or agent cannot physically access the premises during the declaration period 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.

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.

Where a tenant does not consent, a landlord or agent is prevented from physically accessing the 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.

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 the 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.

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. These changes include closing the ACAT counter and premises from in-person visits and conducting hearings via teleconference. 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.