Tenants Not Paying Rent / Eviction Moratorium
Moratoriums preventing commercial and residential landlords from evicting tenants who are unable to pay due to financial pressures caused by Covid-19 were in place for about 6 months, but most states have now ended the moratoriums. Some special situations still apply.
PropertyNow is committed to keeping homeowners and landlords up to date on the constantly evolving regulations and how best to handle these difficult situations. We’ll work through a few scenarios and some suggestions on how to manage the situation that is best for everyone.
Note that some homeowners will receive support from their landlord’s insurance to cover rental losses, depending upon how they deal with their tenants. See State-specific resources below.
To start with, this moratorium on evictions only applies to tenants who are not able to meet their obligations due to financial distress as a result of the coronavirus crisis according to Prime Minister Scott Morrison.
Step #1 – Communicate With Your Tenant
Have a conversation with your tenant; see what their personal situation is – did they lose their job, have their hours been reduced. Empathy goes a long way – take a few minutes to ask about their family and themselves and find out how they are doing. Being focused strictly on business does not endear the tenant to you; ideally you have been engaged from the get-go and this display of empathy will not appear fake.
Step #2 – Educate Yourself on Mortgage Relief Resources
- Land Tax relief may be available to landlords where their tenancy has been affected by COVID-19.
- Each state has its own frameworks to follow if tenants are late with rent.
- It is imperative to know what your landlord insurance will cover before you make an agreement with your tenant. It is unlikely that insurance will cover you if you agree to reduce, suspend or defer rent from a tenant. Some states do have programs in effect that will help defray your expenses should you decide to work with your tenant. See state-specific information below.
- Property investors should also speak to their bank about getting a mortgage holiday – either pausing or reducing their monthly repayments.
Step #3 – Educate Your Tenant on Available Resources (and yourself as well!)
It is possible that your tenant may not be aware of financial options that are available to them during this pandemic. If you advise them of all possible options, you have a higher chance of obtaining rent from someone who previously did not have sufficient funds to cover the entire rent.
- For local emergency relief providers search ‘Financial Crisis and Material Aid – Emergency Relief’ at serviceproviders.dss.gov.au. Please note provider details are updated regularly but may not be current at the time of your search.
- For financial counselling, including advice on managing debt, contact the free and confidential National Debt Helpline by calling 1800 007 007.
- Those on a low income may be eligible to apply for a ‘No Interest Loan’. For more information and details on how to apply, visit Good Shepherd Microfinance
- To test eligibility for income support payments including JobSeeker, contact Services Australia by visiting servicesaustralia.gov.au.
- There are a number of Government funded crisis and support services to help people during the coronavirus pandemic. Download a list of dedicated online and telephone-based services for people with disability, older Australians, carers, and people experiencing domestic, family, or sexual violence.
Things that tenants need to know:
- Centrelink may be able to help with rent assistance in certain situations (those who already qualify for income support such as JobSeeker payment, Youth Allowance, or the Parenting Payment)
- If rent is not paid, debt continues to accrue. Once the moratorium ends, eviction will be an option.
- Landlords have the right to keep a tenant’s bond to cover the rent.
- Rent owed beyond the bond can be pursued through debt collectors or file court proceedings, which could impact credit ratings
- There are privately owned tenancy databases (e.g. National Tenancy Database, Tica, and Trading Reference Australia) that real estate agents may use to screen prospective tenants. A track record of missing payments can mean a black mark on a future rental application, making it difficult to obtain a new lease.
Step #4 – Come up With an Arrangement
All states are suggesting that tenants and landlords work together first and foremost to come up with an agreed upon arrangement relating to rent.
Options include:
- Reduce the rent
- Suspend the rent
- Payment plan
- Break Lease
- Final Option (no agreement possible)
Pros and Cons of each option (see state specific information below)
| Option | Pro | Con | Good For |
|---|---|---|---|
| Reduce the rent | Landlord continues to have some money coming in. |
May not be eligible to claim loss of rent via landlord insurance. Note this reduction is not payable by the tenant in future – that would be a deferral (see below). | Landlords in states and Territories that are planning to Land Tax relief for tenancies impacted by COVID-19 (see state specific information below) |
| Suspend the rent (Rent becomes $0 for a specified period of time) | Should a landlord have a tenant who is otherwise ideal (e.g. has lived in the unit for years, pays rent on time, is quiet, etc.), this may be an option to consider. | May not be eligible to claim loss of rent via landlord insurance.This money is not payable at a future date. | Landlords with ideal tenants they’d like to help out. |
| Payment plan (Deferral) | Landlord continues to have some money coming in and the reduction offered during the pandemic is payable in the future.If you do need to evict the tenant in future, you are able to show the Tribunal that you made an effort to work with the tenant. |
If a tenant was unable to pay full rent during the pandemic and does not receive any sort of external financial relief, there is a possibility they will never be in a position to repay that rent that was not paid. Landlord Insurance provider MAY be more inclined to cover a portion of rent (e.g. the deferred amount). | States offering to meet landlord efforts at deferring tenant rent |
| Break Lease – Landlord and tenant may agree to end a fixed lease early | Landlord is not stuck with a non paying tenant. | It may be difficult to get a new tenant during Covid-19. | A market or listing that has a high likelihood of getting a new tenant in the next couple of months. |
Step #5 – No Resolution Possible
If you need to evict your tenant, you’ll have to follow state procedures for COVID-19 related issues and use the free mediation service provided by the Tribunal or follow normal eviction procedures.
Note that the Tribunal will most likely not hear an application during the pandemic but you still need to make the application within the proper time frame and serve appropriate notices in order to keep within the guidelines and requirements of your Landlord Insurance policy.
State Specific Information
TASMANIA
Tasmanian Government protections initially put in place for residential tenants during the pandemic ended 31 January 2021..
The Tasmanian Government is providing financial support for residential tenancies in the private market and who are experiencing financial hardship due to the impact of the coronavirus (COVID-19).
The COVID-19 Rent Relief Fund and Landlord Support Fund offered support of up to $2,000 or four weeks rent per fund to eligible tenants and landlords.
Tenants can apply for a first, second, third, fourth or fifth support payment if eligible. Landlords can apply for a first, second, third and fourth support payment if eligible.
Changes to the Residential Tenancy Act 1997 have been introduced to allow the Residential Tenancy Commissioner to issue a repayment order which will allow landlords to recover any outstanding rental arrears which have been accrued during the COVID-19 emergency period.
The rent arrears payment order does not override the obligation of a tenant to make regular payments of rent but instead, the order outlines a schedule for repayments in addition to normal rent obligations
State Resource:
QUEENSLAND
The Queensland Government extended temporary regulatory measures to legislate its COVID-19 response for residential tenancies. Until 30 September 2021, protections include:
- Provisions allowing tenants experiencing domestic and family violence to end their tenancies quickly
- Protections for tenants against being listed in a tenancy database for rent arrears caused by COVID-19 impacts
- Limits on reletting costs for eligible tenants who end their fixed term tenancies early
- Short term tenancy statement extensions for moveable dwellings.
State Resources:
Other Resources:
- RTA’s General Tenancy COVID-19 special terms form (18D) to record any new agreements
- Residential Tenancies and Rooming Accommodation Act 2008
AUSTRALIAN CAPITAL TERRITORY
As part of its emergency response measures, a number of temporary changes to the Residential Tenancies Act 1997 (the Act) have been introduced with the commencement of the Residential Tenancies (COVID-19 Emergency Response) Declaration 2021 (No 3) (the declaration) on 2 September 2021.
The declaration has introduced temporary measures to protect households that have been identified as being impacted physically or financially by COVID-19 including:
- a 12 week moratorium on evictions for non-payment of rent where tenants are a COVID-19 impacted household;
- 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;
- a relaxation on the time period for non-urgent repairs;
- a rental increase freeze for COVID-19 impacted households;
- restrictions on physically accessing rental premises and alterations to the way inspections should be performed;
- 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 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;
- 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;
- a 12 week transitional period following the moratorium period 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;
- 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.
To date, all other rights and obligations under residential tenancy and occupancy agreements remain the same.
Other Resources:
VICTORIA
The temporary changes to renting laws because of COVID-19 ended on Sunday 28 March 2021
This means that from Monday 29 March 2021:
- Rent reduction agreements can no longer be lodged with Consumer Affairs Victoria
- You can apply directly to the Victorian Civil and Administrative Tribunal (VCAT) for dispute resolution
- Rental providers (landlords) can issue a notice to vacate to renters (tenants) and raise the rent again, but new rights and responsibilities apply
For more information about your rights and responsibilities under Victoria’s new renting laws visit the Consumer Affairs Victoria website
Government Resources:
Other Resources:
NEW SOUTH WALES
Eligible COVID-19 impacted tenants who cannot meet their residential rent payments are protected from eviction during the moratorium period starting 14 July 2021 and ending 11 November 2021.
The protection against eviction for rental arrears applies to all residential tenancy agreements within the meaning of the Residential Tenancies Act 2010 (the Act), including oral agreements.
To be protected from eviction during the moratorium period, the impacted tenant must:
- be able to show the landlord that they are an impacted tenant, and
- continue to pay the landlord at least 25% of the rent payable under the residential tenancy agreement.
A landlord or agent may continue to seek termination in other circumstances including:
- sale of premises
- illegal use of premises
- serious damage to the premises
- hardship to the landlord
- end of fixed-term agreement
- ‘no grounds’ terminations.
The usual notice periods apply in these circumstances.
Following the end of the freeze on evictions, a transitional period will run from 12 November 2021 until the end of 12 February 2022.
During this time, COVID-19 impacted tenants who accrued arrears during the moratorium period (14 July 2021 and 11 November 2021) are exempt from provisions that would allow them to be evicted for those arrears unless:
If the landlord and tenant have agreed to an arrears repayment plan:
- the tenant fails to make repayments in the amounts and at the times required by the plan on two or more consecutive occasions, and
- it is otherwise fair and reasonable in the circumstances for the tenant not to be exempt.
OR
If the landlord and tenant have not agreed to a repayment plan:
- the landlord and tenant have participated in good faith in a formal arrears repayment negotiation process with NSW Fair Trading, and
- it is otherwise fair and reasonable in the circumstances for the tenant not to be exempt.
In considering whether it is fair and reasonable in the circumstances for the tenant not to be evicted, the Tribunal must have regard to:
- the steps taken by the landlord and tenant to negotiate a repayment plan
- any payments made by the impacted tenant towards the arrears
- the nature of any financial hardship experienced by the landlord or tenant, including the general financial position of each party
- the availability and affordability of reasonable alternative accommodation for the tenant
- whether the landlord has applied for or received any financial assistance or land tax rebates available to landlords who reduce rent, and
- any special vulnerability of the tenant.
Government Resources:
Other Resources:
NORTHERN TERRITORY
The Northern Territory government recalled parliament to sit on 24 April 2020 to pass more coronavirus emergency legislation, including residential tenancy laws.
Attorney-General Natasha Fyles told Parliament that severe penalties would apply to both NT tenants and landlords caught taking advantage of emergency rental laws.
It is expected that there will not be a moratorium on evictions but rather, renters can go into 60 days of arrears before getting a further 60 days to rectify this with their landlord, giving both parties extra time to negotiate next steps. Only after the 120 days can landlords move to evict tenants under the normal process of going through NT Civil and Administrative Tribunal.
Residential tenants must prove, through a letter from their employer or bank statements, that coronavirus restrictions have caused their income to be reduced to the point their rent eats up more than 30% of their pay.
The maximum penalty for misrepresenting information is a $31,400 fine (200 penalty units) or two years in prison.
Government Resources:
Other Resources:
WESTERN AUSTRALIA
The extended COVID-19 emergency period has ended, which means the ordinary tenancy laws under the Residential Tenancies Act 1987 (WA) apply again.
Landlords and tenants are encouraged to act and negotiate in good faith to agree on reasonable and workable tenancy arrangements, helping to create a safe and secure renting future for everyone.
Government Resources:
Other Resources:
SOUTH AUSTRALIA
Recognising the impact that the coronavirus (COVID-19) pandemic has had on a number of South Australians, the South Australian State Parliament has endorsed a number of initiatives aimed at helping landlords and tenants whose incomes have been affected. These measures apply to residential tenancies, rooming houses and residential parks.
These initiatives can be expected to be in place until 1 December 2021, or 28 days after all relevant declarations relating to COVID-19 have ceased – whichever comes first.
The measures aim to:
- institute a short-term moratorium on eviction for non-payment of rent due to severe rental distress as a result of COVID-19
- prevent landlords from increasing rent, where the tenant is suffering financial hardship due to COVID-19
- extend the tenant’s ability to arrange to have repairs carried out by agreement with the landlord
- provide a general protection for tenants who breach their agreement as a result of complying with a direction under law relating to COVID-19.
SACAT will continue to be able to consider undue hardship to tenants or landlords.
Where tenants have been impacted by COVID-19 but still have the capacity to pay their rent, they should continue doing so. Where alternative arrangements are needed as a result of COVID-19, tenants and landlords are encouraged to work together on an agreement and – where an agreement cannot be reached – the matter may need to go before the South Australian Civil and Administrative Tribunal.
Government Resources: