On 24 April 2020, the Queensland Government released the Residential Tenancies and Rooming Accommodation (COVID-19 Emergency Response) Regulation 2020 (Regulation) which regulates residential tenancies in Queensland until 31 December 2020, as outlined in the COVID-19 Emergency Response Act 2020.
The Regulations have some retrospective application with certain provisions taken to have commenced on 29 March 2020 in particular, the moratorium on evictions which defines the ‘relevant period’ to be between 29 March 2020 and the earlier of either 29 September 2020 (being 6 months) or the last day of the COVID-19 emergency period.
A link to the Regulation is here: https://www.legislation.qld.gov.au/view/html/asmade/sl-2020-0057
Who does the Regulation apply to?
The Regulation applies to—
(a) all residential tenancy agreements and rooming accommodation agreements; and
(b) all tenants, lessors, residents and providers, and their agents, for the agreements mentioned in paragraph (a).
Summary of the Regulation
Commercial and Residential - Where to from here?
As with the Code of Conduct for Commercial Leases, the Regulation will likely increase the financial pressure on landlords and the Government is expecting the banks to come to the rescue.
Given that both the landlord and tenant will be experiencing high levels of financial distress, they may be unable to reach fair and reasonable agreements among themselves as there will likely be an ‘every man for themselves’ mentality during negotiations which will likely see the amount of conciliations and hearings before the tribunal increase significantly – which may mean long wait times for a resolution.
Landlords and tenants will reduce stress by negotiating sensibly and amicably and having the variation agreement properly documented.
We have set out the five key steps you need to know to navigate these issues properly and maximise a successful resolution, whether you are the landlord, or the tenant:
Firstly, work out whether the particular circumstances and thresholds apply to your lease, and if so, what the principles and protections require. Those circumstances and thresholds are set out above and in other updates on our Covid-19 Resources page found here: https://croninmiller.com.au/covid-19-resources/.
Secondly, if the principles and protections apply, the next issue is bringing about the negotiation.
Here, communication is key. Landlords and tenants should come to the metaphoric table and work through the financial capacity of the parties, the minimum variations that must be made to the lease according to the principles and protections, the practical implications of the terms and how they affect the parties’ other obligations both to one another and to other stakeholders. This process should be initiated through the property agent, if there is one.
Ensure you have adequate representation. It is reasonable to have your lawyer represent you in negotiations, or you can represent your own interests and seek legal advice either:
If an agreement cannot be reached, the parties must utilise the alternative dispute resolution methods available through the relevant government-nominated organisation.
Lastly, if the parties can or have reached an agreement about the variation of terms, it is crucial that the agreement is properly recorded in an agreement that legally varies the terms of the original lease.
Parties cannot, and should not, rely on a conversation, handshake or exchange of emails or text messages to protect their rights to later enforce the terms of the variation agreement reached. Most, if not all, leases will require variations to the terms to be recorded in writing and signed by the parties.
A variation agreement that is poorly drafted, or not recorded in writing and signed at all, will only expose you to disputes and legal costs down the track, so it is important to get this right.
You should consult a lawyer to prepare the variation agreement as if you were engaging a lawyer to draft or review the lease agreement in the first place. This is the surest way to ensure your rights are protected.
For simple residential tenancies, it may not be viable to have the variation agreement drafted or reviewed by a lawyer. To ensure the agreement reached has the best prospects of enforcement, simply stick to the RTA’s new Form 18d - General tenancy COVID-19 variation agreement which can be downloaded here: https://www.rta.qld.gov.au/Forms-and-publications/Forms/Forms-for-general-tenancies.html
For commercial leases or complex residential tenancies, contact a member of our team at Cronin Miller Litigation for guidance. Dispute resolution techniques are invaluable here and professional assistance is going to maximise the prospects of a commercial outcome.
T: 07 5592 6633
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Cronin Miller Litigation is a Gold Coast based law firm specialising in resolving commercial disputes, and providing effective results for persons who have a claim of a commercial nature.Contact us today