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.