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Changes to special protections for retail and commercial leases affected by COVID-19

Special regulations introduced as part of the State Government’s response to the COVID-19 pandemic, which have provided significant protections to tenants in retail and commercial premises, ended on 3 January 2021.

For rental disputes between lessors and affected lessees that relate to the COVID-19 pandemic and remain unresolved prior to 4 January 2021, the COVID-19 Emergency Response Act 2020 (Act) and COVID-19 Emergency Response (Commercial Leases No 2) Regulations 2020 (Regulations) will continue to have effect (where appropriate).

The Act and Regulations have provided the opportunity for tenants and their landlords to negotiate in good faith and, where necessary, mediate through the Office of the Small Business Commissioner.

From 4 January 2021, disputes relating to retail and commercial leases from that date will revert to the Retail and Commercial Leases Act 1995 and Retail and Commercial Leases Regulations 2010 or other relevant legislation.

Therefore any breaches of the terms of a lease after 4 January 2021 may be dealt with by way of breach notice and normal enforcement measures, including distraint and eviction.

It is critical that retail and commercial tenants ensure that rental commitments required under a lease are paid on normal and/or agreed terms and in full from 4 January 2021. Lessees should clearly identify what period the payment is for (eg January 2021 Rent).

In the first instance, if lessees are having difficulty making payments, they should commence discussions with their lessor as soon as possible.

As always, we strongly urge any lessor to take independent legal advice prior to taking enforcement action.

The Office of the Small Business Commissioner is ready to assist both lessees and lessors in resolving their differences.  

Enquiries can be made to the Office of the Small Business Commissioner via email or via our Contact Us page on this website. 

For information on residential tenancies, contact Consumer and Business Services.

For further information on the State Government's response to assist lessees and lessors please click here.