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The NSW COVID-19 retail and commercial leasing laws’
‘prescribed period’ ended on 30 June 2022. The laws
were automatically repealed on 14 July 2022. This has two
- looking into the future,
commercial tenants are no longer protected by COVID-19 tenancy
laws. If breaches, including arrears, occur after 1 July 2022,
landlords can enforce their rights for those breaches. This
- it becomes slightly more complicated looking backwards. Parts
of the COVID-19 laws are ‘saved’ for some past
occurrences. For arrears accrued during a ‘protected
period’ before 1 July 2022 (i.e. before the end of the
prescribed period), the tenant still has the
COVID-19 leasing law protections for those arrears. The most
recent protected period was from 13 January 2022 until 30 June
How the laws will work
A few scenarios illustrate how the changes apply:
- tenant A has one month’s arrears from a COVID-19 protected
period (say the February 2022 rent was not paid), and no arrears
from 1 July 2022 onwards (outside the COVID-19 protected period).
If tenant A is eligible for COVID-19 rent relief, but there has
been no COVID-19 agreement or mediation, the landlord would need to
mediate before terminating. If no mediated COVID-19 agreement is
reached, the landlord could then terminate. (This only applies if
tenant A was entitled to COVID-19 protection, such as if the tenant
was an ‘impacted tenant’. If not, the landlord was never
restricted in enforcing for pre 1 July 2022 arrears.)
- next, tenant B has, firstly, one month’s arrears from a
COVID-19 protected period (say the February 2022 rent was not
paid), and secondly, tenant B does not pay the August 2022 rent
when it becomes due (outside the COVID-19 protected period).
Regardless of whether tenant B was eligible for COVID-19 relief in
March 2022, based simply on the August 2022 breach, the landlord
can enforce (including terminating) for not paying the August 2022
rent. There may be an issue about whether the landlord’s loss
calculation needs to give some discount for any COVID-19
entitlements the tenant had, but the lease can still be terminated
- finally, tenant C has no arrears from the COVID-19 protected
period but does not pay the August 2022 rent when it becomes due
(outside the COVID-19 protected period). Regardless of whether
tenant C was ever eligible for COVID-19 relief, based on the August
2022 breach, the landlord can enforce (including terminate) for not
paying the August 2022 rent.
These scenarios give the basic application. Individual cases may
raise other issues, such as if the landlord is in breach for not
giving past COVID-19 relief affects the landlord’s right to
terminate – which will depend.
What to look out for
The following checklist may assist landlords considering their
- are there pre 1 July 2021 arrears?
- was the tenant an impacted lessee before 1 July 2022?
- are there are any post-regulation arrears (i.e. post 30 June
- is there a documented COVID-19 relief agreement which the
tenant has breached, giving the landlord an enforcement right?
With the prescribed period receding, things should slowly become
This publication does not deal with every important topic or
change in law and is not intended to be relied upon as a substitute
for legal or other advice that may be relevant to the reader’s
specific circumstances. If you have found this publication of
interest and would like to know more or wish to obtain legal advice
relevant to your circumstances please contact one of the named
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