Information for Tenants and Occupants impacted by COVID-19

Many members of our community are being impacted by COVID-19 in ways which are causing them to experience financial distress. As a result, some tenants and landlords are having difficulties meeting their financial agreements.

This information explains the measures put in place by the ACT Government to assist tenants and landlords who are financially impacted by COVID-19, in order to help you understand your rights and find solutions.

Use ACT law

Residential tenancy laws differ across the States and Territories and our COVID-19 response measures are also based on local circumstances. You should always make sure the information you are relying on relates to the ACT. This information will be updated if the Commonwealth or ACT Governments announce new measures to help tenants and landlords.

Summary of Changes

In line with the commitment by National Cabinet, the ACT implemented a 6-month moratorium on evictions for non-payment of rent for COVID-19 impacted households between 22 April and 22 October 2020.  The eviction moratorium has now ended.  However, the ACT Government has put in place measures to continue to support tenants and landlords and to provide a smooth transition out of the moratorium.

These measures are:

  • a transition period which limits evictions on the basis of rent arrears accrued during the moratorium for COVID-19 impacted households in certain circumstances;
  • the continued ability to negotiate reduced rent;
  • a requirement for the ACT Civil and Administrative Tribunal (ACAT) to consider making a payment order instead of an eviction order for COVID-19 impacted household;
  • the continued ability for a tenant in a COVID-19 impacted household to terminate their fixed-term tenancy agreement early and without penalty;
  • continued restrictions on a negative listing being made about a person from a COVID-19 impacted household on tenancy databases; and
  • the continued ability for tenants on pre 6 April 2020 fixed-term tenancies to pay just two weeks rent in advance (all other tenants are already able to do this).

These measures commenced on 23 October and will operate until 30 June 2021 (unless extended).

 

All other rights and obligations under residential tenancy and occupancy agreements remain the same.

What is the Transition Period?

The transition or grace period provides tenants who are in arrears at the end of the moratorium with a longer period to repay these rent arrears before they can face eviction.

The transition period will be in place from the 23 October 2020 - 30 June 2021 (unless extended). 

If you are in a COVID-19 impacted household and are in rent arrears at the end of the moratorium period, your landlord will not be able to evict you on the basis of those arrears during the transition period so long as you pay your rent as it falls due throughout the transition period.

Does the transition period or any other support measures apply to me?

The transition period applies to households that can demonstrate that they were impacted by COVID-19 during the moratorium period (22 April to 22 October 2020) in the following ways:

  1. A member of the household became eligible for the JobSeeker or JobKeeper payment from the Commonwealth on or after 20 March 2020 OR
  2. Where the household income (inclusive of any government assistance) had reduced by 25% or more due to:
  • one or more rent-paying members of the household being impacted by measures taken by any State, Territory or the Commonwealth in response to the COVID-19 pandemic (for example, COVID-19 business closures or stand-downs); or
  • one or more rent-paying members of a household had to stop working or reduce work hours due to illness with COVID-19 or to care for a family member who is ill with COVID-19.

The following support measures will also be available to households who were COVID-19 impacted during the moratorium period as well as those who become COVID-19 impacted between 23 October 2020 and 30 June 2021:

  • the ability to negotiate a temporary rent reduction; and
  • the ability to terminate a fixed term tenancy early without penalty.

See below for the types of evidence you are able to provide in order to demonstrate that you were a member of an impacted household during the moratorium period.

How do I prove I am impacted by COVID-19?

You can provide documents which evidence that you are impacted by COVID-19 to your landlord or agent such as:

  • proof of eligibility for JobSeeker or JobKeeper payment;
  • proof of job termination or stand-down such a letter or email from your employer;
  • proof of loss of work hours such as rosters showing a reduction in hours;
  • proof of prior and current income in a bank statement or payroll; or making a statutory declaration.
I am in an impacted household, have evidence and am still being evicted, now what?

If you were an impacted household during the moratorium period and are issued a Notice to Vacate during the transition period (23 October to 30 June 2021) on the basis of rent arrears that accrued before 22 October 2020 (moratorium arrears), then the Notice to Vacate will not be valid if you are paying your rent as it falls due during the transition period. ACAT will not be able to evict you on the basis of your moratorium arrears.  However, if you fail to pay your rent as it falls due during the transition period, then the Notice to Vacate may be valid and your landlord may be able to apply to ACAT for a termination and possession order. In these circumstances, ACAT will be required to consider making a payment order as an alternative to eviction (see further information on payment orders below).

You can seek free legal advice about your rights from the Legal Aid Tenancy Advice Service on 1300 402 512 (see further details below).

What happens if I don’t pay my rent during the transition period?

If you do not pay your rent as it falls due during the transition period, then your landlord will be able to take the usual steps under the Residential Tenancies Act 1997 to end your tenancy.  However, if your landlord applies to the ACT Civil and Administrative Tribunal (ACAT) for a termination and possession order and you are in an COVID-19 impacted household, ACAT must consider making a payment order before they make a termination and possession order on the basis of your rent arrears (see further below).

If you fall into rental arrears during the transition period, you may wish to seek legal advice about your rights from the Legal Aid Tenancy Advice Service on 1300 402 512 (see further details below).

What is a payment order and when can ACAT make one?

A payment order is an order that the ACT Civil and Administrative Tribunal (ACAT) can make instead of making a termination and possession order (an eviction order) when the landlord has applied to ACAT to end the tenancy on the basis of rent arrears.  A payment order allows a tenancy to continue and is an order that the tenant pay their rent plus a specified amount towards the arrears.  In other words, it gives the tenant another chance to save their tenancy.

Before making a payment order, ACAT must be satisfied that the tenant will be reasonably likely to make the payments required under the payment order.

If you are a tenant from a COVID-19 impacted household, ACAT will be required to consider if a payment order is appropriate for you before they can make a termination and possession order.  ACAT will still need to be satisfied that you will be reasonably likely to be able to comply with a payment order before they can make the order.

If you breach a payment order (by failing to pay your rent and any arrears amount specified in the order) your landlord can apply to ACAT to have your tenancy terminated.  They do not need to serve you with a new notice to vacate before they make this application.

If your landlord makes an application to ACAT for a termination and possession order you may wish to seek legal advice about your rights from the Legal Aid Tenancy Advice Service on 1300 402 512 (see further details below).

Do I need to pay back any rent I wasn’t able to pay during the moratorium period?

Yes, you still need to pay back any rental arrears. This may be a reduced amount if you negotiated with your landlord or agent for a reduction in rent. If you were in a COVID-19 impacted household during the moratorium period, the transition period (23 October 2020 to 30 June 2021) will give you a longer period in which to repay your arrears before you can face eviction due to those arrears.  However, you will only retain the benefit of the transition or grace period protection if you pay your rent as it falls due during the transition period.

What are the changes to rent in advance?

On 6 April 2020 an amendment to the Residential Tenancies Act 1997 commenced which reduced the amount of rent that a landlord could require a tenant to pay in advance from 1 month to 2 weeks.  This change already applies to all periodic tenancies and any fixed term tenancy that commenced after 6 April 2020.

From 14 September until 30 June 2021 this change applies to fixed term tenancies that commenced before 6 April 2020.

In all cases, while a tenant cannot be required to pay more than 2 weeks rent in advance, the tenant is able to nominate a longer period for payment in advance should they wish to do so.  The option to pay more than two weeks in advance would only arise when proactively nominated by the tenant, not at the suggestion or request of the lessor.

Are there any restrictions on listings on tenancy databases for households impacted by the COVID-19 pandemic?

If a household was impacted by the COVID-19 pandemic during the moratorium period, information about a tenant’s breach of a residential tenancy agreement during the moratorium period must not be published in a residential tenancy database if the breach relates to a failure to pay rent under the agreement.

This restriction remains after the end of the moratorium period if the tenant remains in arrears for rent payable during the moratorium period.

Reduction in rent by mutual agreement

Landlords and tenants may come to an agreement to reduce rent if the tenant is suffering from financial hardship due to the COVID-19 pandemic.

Between 22 April 2020 and 30 June 2021, the mutual agreement can be given effect by:

  • Including a COVID-19 temporary rent reduction clause in the residential tenancy agreement; and
  • Providing a written confirmation of:
    • the agreed reduced rent; and
    • the period the reduced rent applies.

If you are still in financial hardship at the end of the agreed rent reduction period, you can ask your landlord if they are willing to extend the rent reduction period.

What is the COVID-19 temporary rent reduction clause?

The COVID-19 temporary rent reduction clause is an optional additional standard term that tenants and landlords may choose to include that amends their existing tenancy agreement to give effect to an agreed rent reduction.

The COVID-19 temporary rent reduction clause provides:

(1) The parties agree that because of financial hardship suffered by the tenant arising from the COVID-19 pandemic, for the period stated in writing by the parties the rent payable under the agreement is reduced to an amount stated in writing by the parties.

Note: Writing includes any way of representing or reproducing words in visible form including email or text message (see Legislation Act, dict, pt 1, def of writing).

(2) The parties may, in writing, extend the period in which rent is reduced for a further stated period if the tenant continues to suffer financial hardship because of the COVID-19 pandemic.

What happens after the period of reduced rent period ends?

The ability to include a temporary rent reduction clause in your agreement will remain in place until 30 June 2021.  Until 30 June 2021 landlords and tenants may extend an initially agreed rent reduction period by agreeing to an extended period in writing if the tenant continues to suffer from financial hardship due to the COVID-19 pandemic.

If the reduced rent period is not extended, the rent payable reverts to the amount stated in the residential tenancy agreement. This reversion is not an increase in rent for the purposes of the Residential Tenancies Act 1997. This means that the rent can return to its pre-COVID-19 amount without it counting towards the requirement that rents only be increased at intervals of more than 12 months or that the rent increases be limited to a prescribed amount.

I am in an impacted household and want to end my tenancy early, what can I do?

Some tenants may wish to terminate their agreements if they have alternative housing options available.  Any tenancy can be ended at any time by agreement between the landlord and tenant.  If you cannot agree, your rights in relation to ending a tenancy will vary depending on whether you are in a fixed-term or periodic tenancy.

Terminating a periodic tenancy

If you have a periodic tenancy, you can terminate the agreement at any time (regardless of whether you are COVID-19 impacted) by giving the landlord at least 3 weeks written notice of your intention to vacate.  The tenancy will end on the date specified (assuming that date is at least 3 weeks after the notice is provided).

You do not have to pay any compensation to the landlord if you decide to end a periodic tenancy.  However, if you are in rental arrears, at the time you terminate your agreement you will still owe this money to your landlord.

You will need to go through the usual end of lease procedures in relation to an end of lease condition report and bond.  Speak to your landlord or real estate agent about how this can be done in a way that complies with any social distancing requirements.

Note that after changes to the law that commenced on 3 March 2021 mean that just one tenant may be able to leave a tenancy agreement while the tenancy agreement continues with the landlord and any remaining housemates.  See the Residential Tenancy and Occupancy Reforms page for more information about these changes.

Terminating a fixed term tenancy

If you are in a COVID-19 impacted household, until 30 June 2021, you can give your landlord 3 weeks written notice that you want to end your fixed term tenancy early.  You will also need to provide your landlord with some evidence that you are a COVID-19 impacted household.  Evidence could include:

  • proof of eligibility for JobSeeker or JobKeeper payment;
  • proof of job termination or stand-down such a letter or email from your employer;
  • proof of loss of work hours such as rosters showing a reduction in hours;
  • proof of prior and current income in a bank statement or payroll; or a statutory declaration which sets out how you have been impacted.

Your landlord will not be able to charge you a ‘break-lease’ fee if you terminate your agreement in these circumstances. However, if you are in rental arrears, at the time you terminate your agreement you will still owe this money to your landlord.

You will need to go through the usual end of lease procedures in relation to an end of lease condition report and bond.  Speak to your landlord or real estate agent about how this can be done in a way that complies with any social distancing requirements.

The ability for COVID-19 impacted households to terminate their tenancy in this way will remain in place until 30 June 2021.  After that time, the usual rules under the Residential Tenancies Act 1997 will apply again and you may need to pay compensation or a break lease fee to your landlord if you want to end a fixed term tenancy early

 

Note that changes to the law that commenced on 3 March 2021 mean that just one tenant may be able to leave a tenancy agreement while the tenancy agreement continues with the landlord and any remaining housemates.  See the Residential Tenancy and Occupancy Reforms page for more information about these changes.

I live in a share house and my housemate is no longer able to pay their rent, what can I do?

Where a co-tenant is unable to pay rent, other tenants who are on the lease remain jointly liable to pay rent.

If you are experiencing financial hardship as a household, you should contact your landlord or real estate agent in the first instance. You may be able to negotiate a rent reduction or to terminate your lease, even if it is a fixed term lease.

If you weren’t able to pay your rent during the moratorium period, you will still owe any unpaid rent as a debt to the landlord unless you have negotiated a rent reduction.

Any failure by you to pay rent during the moratorium period does not allow a landlord or agent to list information about you in a residential tenancy database, even after the moratorium period has ended, even where you still owe rent after the moratorium period.

A transition or grace period is in place from 23 October 2020 to 30 June 2021 which provides tenants who were in COVID-19 impacted households a longer timeframe to pay their rental debts as they will not be able to be evicted on the basis of arrears that accrued before or during the moratorium on the condition that they pay rent as it falls due during the transition period. If a tenant is unable to meet their rent payments as they fall due during the transition period, ACAT will be required to consider making a payment order rather than ordering an eviction for a tenant who was in a COVID-19 impacted household (a payment order is a form of Tribunal-ordered repayment plan).

Note that after changes to the law that commenced on 3 march 2021 mean that just one tenant may be able to leave a tenancy agreement while the tenancy agreement continues with the landlord and any remaining housemates.  See the Residential Tenancy and Occupancy Reform page for more information about these changes.

 

I live in a share house and my housemate is no longer able to pay their rent, can I terminate the tenancy?

Where a co-tenant is unable to pay rent, other tenants who are on the lease remain jointly liable to pay rent. In this situation, some tenants may decide to terminate their agreement if they have alternative housing options available rather than make up any shortfall in rent, accrue debt or negotiate a rent reduction with their landlord. Your options for terminating a tenancy will depend on whether it is during the fixed term or periodic tenancy:

  • If you have a periodic tenancy, you can terminate the agreement at any time by giving the landlord at least three weeks written notice of your intention to vacate;
  • If you have a fixed term and your household meets the definition of COVID-19 impacted then you can also terminate your tenancy, without penalty, by giving your landlord 3 weeks written notice of your intention to vacate.  However, in a fixed-term tenancy you will also need to provide your landlord with evidence that your household is COVID-19 impacted (see above for further information).  This measure will be in place until 30 June 2021.  After that time the usual rules under the Residential Tenancies Act 1997 will apply. 

After 30 June 2021, if you are in a fixed term tenancy you may negotiate to end your tenancy early by mutual agreement with your landlord or, if an agreement cannot be reached, you may need to pay a break lease fee or compensation to your landlord for the early termination of your agreement.

Note that changes to the law that commenced on 3 March 2021 mean that just one tenant may be able to leave a tenancy agreement while the tenancy agreement continues with the landlord and any remaining housemates. See the Residential Tenancy and Occupancy Reforms page for more information about these changes.

Co-tenants who have a dispute between themselves (for example, where one tenant is unable to pay rent) can apply to the ACT Civil and Administrative Tribunal (ACAT) to resolve the dispute. See the Residential Tenancy and Occupancy Reforms page for more information about these changes.

Can landlords claim the gap in rent reduction and original rent as arrears or debt?

If landlords and tenants arrive at a mutual agreement for a reduction in the rent by the tenant for a specified period, the difference in reduced rent and the amount immediately before the rent was reduced cannot be claimed by the landlord as arrears or debt for that period.

How has COVID-19 affected ACT Civil and Administrative Tribunal’s (ACAT) operating procedures?

Tenancy and occupancy disputes (including applications to terminate agreements on the basis of hardship) can be resolved through the ACT Civil and Administrative Tribunal (ACAT). ACAT is fully operational however, ACAT has changed some procedures to manage the COVID-19 risk, minimise the spread, and comply with Territory and Commonwealth government advice.

For details about the arrangements ACAT has in place during the COVID-19 emergency response, please see https://www.acat.act.gov.au/what-to-expect/changes-due-to-covid-19 . You can contact ACAT by email on tribunal@act.gov.au or by phone on (02) 6207 1740.

Where can I go for help?

Advice for Private Tenants and Occupants

Contact the Legal Aid Tenancy Advice Service on 1300 402 512 or find out more information on their website: https://www.legalaidact.org.au/tasact

Advice about Social Housing or Eligibility for Centrelink payments

Contact Canberra Community Law on  6218 7900 or find out more information on their website: https://www.canberracommunitylaw.org.au/

Relevant Legislation

To access the relevant legislation, click on the links below:

Residential Tenancies Act 1997

Residential Tenancies (COVID-19 Emergency Response) Declaration 2020 (No 2) (the moratorium declaration)

Residential Tenancies (COVID-19 Emergency Response) Declaration 2020 (No 3)(the transition period declaration)