HHG Legal Group’s Property team’s Matthew Lilly and Julia McCullagh explore the proposed measures to assist landlords and tenants during COVID-19, following the announcement of the Residential Tenancies (COVID-19 Response) Bill 202 last week.
Last week Premier Mark McGowan announced that urgent legislation would be introduced to address residential tenancies affected by the COVID-19 pandemic and by 21 April, it was passed.
The main purpose of this legislation is to provide some relief to both tenants and landlords and highlights include:
- The introduction of a six-month moratorium on evicting residential tenants who have evidence of experiencing financial hardship due to the pandemic;
- The prohibition of rent increases during this emergency period;
- Landlords being relieved of their obligation to conduct ordinary repairs if the reason they cannot do so is COVID-19 related financial hardship or a lawful restriction on movement; and
- The enablement of a tenant to end a fixed-term tenancy prior to its end date without incurring break lease fees (tenants will still be liable for damage and rent arrears).
- Automatic change-over to a periodical agreement if a fixed-term tenancy agreement is due to expire during the emergency period.
- If premises are repossessed during the emergency period, the tenancy continues and the mortgagee (ie the bank) or other person(s) with superior title becomes the landlord.
The new laws will apply equally to tenants and landlords in public and private housing, long-stay agreements in caravan parks as well as boarders and lodgers.
The WA Government has stated that a landlord is entitled to ask for evidence from the tenant of undue hardship such as evidence of a tenant losing their job. However, a tenant should not be asked to provide a landlord with evidence of any savings they have, for example, a bank statement.
Residential Tenancies (COVID-19 Response) Bill 2020 – applicable circumstances
This legislation will apply when the landlord or tenant is experiencing undue hardship.
The new laws will apply equally to tenants in public and private housing, park homes as well as boarders and lodgers.
Boarders and lodgers (who are not covered by the residential tenancy act and do not have any of the rights under this act) are usually people who rent out a room in the home of their landlord, they live there together and the tenant does not have a right of exclusive possession (meaning that they do not have the right to exclude anyone, including the landlord from their room or part of the house). Normally “Boarders and lodgers” only need to be given reasonable notice by their landlords and landlords can evict them without an order from the Magistrates Court.
Exceptions to the moratorium
The circumstances where the Residential Tenancies (COVID-19 Response) Bill 2020 would not apply is if:
- a tenant is causing serious damage to the property or injury to the landlord or a person in adjacent premises;
- the tenant abandons the premises; or
- a tenant is experiencing family violence and the perpetrator needs to be evicted.
It is important for people to understand that this is not a freeze on rent but a freeze on evictions. Rent will continue to accrue even if landlords are unable to evict tenants during this period and full payment will be required following the emergency period. Also, should a tenant break a lease, they will still be liable for damage and rent arrears.
Even without this new legislation landlords still need a Magistrate’s Court order to evict a tenant under the Residential Tenancy Act and a hearing date cannot be earlier than 21 days after the notice of termination is issued.
How can HHG Legal Group assist?
Our Property team will continue to monitor this situation and to provide updates as they come to hand, however, should you require any advice relating to the Residential Tenancies (COVID-19 Response) Bill.
For over 100 years HHG Legal Group has been proudly serving Western Australian families, business and individuals. Never before has the State seen such a crippling time for many small businesses and we are committed to supporting the communities in which we operate. To assist individuals affected by the pandemic, HHG Legal Group is offering community fee assistance.
Enquire now to book a virtual meeting with a property lawyer or call us on 1800 609 945.