In a previous article we discussed the NSW governments regulations which gave effect to the National Cabinet Mandatory Code of Conduct – SME Commercial Leasing Principles. The NSW Parliament has now passed further legislation, being the Retail and Other Commercial Lease (COVID-19) Amendment Regulation 2020 (Amendment) which seeks to clarify some of the uncertainties in the initial regulations.  The amendment became effective on 3 July 2020, and has introduced changes to the initial regulations which:

  • Clarify that the obligations to renegotiate rent and other lease terms in good faith before taking prescribed action applies to impacted leases only;
  • Require a lessee to establish that they are an impacted lessee by giving the lessor;
    • A statement to the effect that the lessee is an “impacted lessee”; and
    • Evidence that the lessee is an impacted lessee
  • Clarify that the regulation which deems there to be no breach of a lease due to an act or omission of a lessee required by the law in response to the COVID-19 pandemic applies to “impacted lessees” only.

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