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Can my landlord evict me during this crisis?

The Tenants' Union have posted the following advice:

The Prime Minister announced on 29th March that the States and Territories have agreed to a 6 month moratorium on at least some evictions.  

Yesterday (Monday 13 April) the NSW Government confirmed they will be implementing an interim 60 day moratorium on evictions for rental arrears where the tenant is in financial hardship due to COVID-19, together with longer six month restrictions on rental arrears evictions for those financially disadvantaged by COVID-19.

After the interim 60 day stop on rent arrears evictions, a landlord will be required to enter into negotiations on rent reduction in good faith with the tenant. If they are unsuccessful at reaching a mutually agreed outcome either tenant or landlord can seek assistance from Fair Trading. Only after negotiations have failed can a landlord seek to terminate the agreement. The NSW Civil and Administrative Tribunal (NCAT) will have discretion to assess whether it is fair and reasonable to evict in the circumstances of each case. 

For you to be protected by the 60 day stop on evictions and the longer six month restrictions, your household needs to be able to demonstrate:

  1. one or more rent-paying members of a household have lost employment or income (or had a reduction in employment or income) due to 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 due to COVID-19 carer responsibilities for household or family members, and

  3. the above factors result in a household income (inclusive of any government assistance) that is reduced by 25% or more.

The 25% reduction in household income is assessed on income after tax, and is assessed on total household income, inclusive of any government assistance, such as the new job keeper payments.

Along with restrictions on evictions for rental arrears, the NSW Government has announced it will extend the notice periods for certain other lease termination reasons to 90 days. We don't have any further details about which grounds the extended notice period will apply to, or whether there will be any further extension on the notice period for 'no grounds' terminations under section 85. We are also unclear about whether extensions on notice periods will apply for termination notices issued before the announced measures are formally introduced. 

Landlords will still be able to apply to the Tribunal to terminate an agreement (to evict the tenant) where they can show they are suffering genuine hardship.

These measures have not yet been formally implemented, but are likely to be implemented by the end of the week (by Friday 17 April).

We will share more details as we get them.

Right now, your landlord may still follow the current processes laid out in the Residential Tenancies Act 2010. However, you cannot be evicted without an order from the NCAT, and only the Sheriff can physically remove you. See our factsheet on evictions. If you have an NCAT hearing this week for eviction, or if NCAT has issued a warrant for possession you should get in touch with your local Tenants' Advice Service for free legal advice immediately.

The NSW Government has suggested they will be implementing the measures outlined above within the next few days or early next week. The Fair Trading website provides some detail about the 60 day stop and the further 6 month restriction on evictions for rent arrears. If you get a notice of termination for any reason in the coming days, we recommend not moving home before full details are released. Get in touch with your local Tenants' Advice Service for legal advice as soon as possible.

You can also attempt to negotiate with your landlord – if you are already in arrears, it's better to be proactive. It's unlikely to cost you anything to do so. A community member, Sage, has helped draft this letter you might find useful to send. Remember to edit it before sending! See also this statement from the Real Estate Institute of Australia, and the recently announced land tax relief for landlords who agree to reduce rents for tenants in financial distress. It may be useful to help convince your real estate agent or landlord. If your agent or landlord suggests you consider drawing on your super to cover your rent or any debt that has accrued, you should refer them to this ASIC media release and information provided by Fair Trading confirming agents and landlords must not encourage tenants to access their super. 

Be very cautious about agreeing to rent deferrals where you have to pay back the rent later - this may cause significant issues later on. 

The Tenants' Union and more than 100 other organisations and experts around Australia are calling on all Commonwealth, State and Territory governments to put a stop on all evictions during this health crisis. Please sign our petition and read the full statement.

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