As of 14 July 2021, commercial landlords will not be able to take action against tenants impacted by the COVID-19 pandemic without first attempting to resolve the dispute by mediation.
If an impacted lessee breaches the lease by failing to pay rent or outgoings or by failing to be open for business during the hours specified in the lease, the landlord cannot take action against the tenant. However, this exception only applies to breaches between 13 July 2021 and 20 August. The landlord will only be able to take action such as eviction or suing for damages if the mediation has been unsuccessful in resolving the dispute.
As per the Retail and Other Commercial Leases (COVID-19) Regulation 2021, an impacted lessee is a tenant who qualifies for a ‘Micro-business COVID-19 Support Grant’, a ‘COVID-19 NSW Business Grant’ or a ‘Job Saver Grant’ and had a turnover in the 2020-2021 financial year of less than $50 million. The onus is on the lessee to give the landlord a statement evidencing these three facts, and it must be given before or as soon as practicable after the breach, and within a reasonable time after the landlord requests it.