COVID-19 – Government Assistance Overview for landlords and tenants (Part 2)

Giancarlo Romano
6 April 2020

The COVID-19 health crisis has necessitated Government intervention and assistance the world over. The National Cabinet (comprised of Australian Federal and State Governments) have agreed on various principles of assistance for small business; though to date, the Victorian and Federal Governments are yet to pass amended tenancy legislation for retail, commercial and residential leasing.

This article discusses the different stimulus packages and principles of the National Cabinet announced as at 6th April 2020.

Assistance Packages Announced to Date

Currently, in Australia, the assistance packages from Federal and State government amount to over 16% of our GDP; which to put into perspective is around 4 times more than what was made available during the GFC. The stimulus packages continue to evolve each day however the initial focus was on keeping wages flowing to employees, as opposed to rescuing businesses from their rental obligations or landlords from their own expenses. The majority of financial assistance available to date is being aimed at tenants therefore, with only some reprieves potentially available to landlords at present. For this reason, tenants that may be experiencing hardship in paying their rent are encouraged to speak firstly with their accountants to determine what assistance packages they may qualify for before going to their landlords for assistance.

Whilst this is not an exhaustive or constantly updated list, at present the author has advised clients on the following relief/assistance packages available to individuals and/or businesses in Victoria:

Federal Australian Government Package:

• Unsecured loans (up to $250,000) for businesses with a 50% government guarantee;
• Temporary relaxation of rules around statutory demands and bankruptcy;
• Wage assistance for apprentices and trainees;
• Tax free cash payments of up to $100,000 to incentivise businesses to hold on to employees;
• Reduced tax liabilities by increasing depreciation deductions & instant asset write-off;
• Stimulus payments to households to support growth (welfare income support and early access to superannuation)

Victorian Government Package:

• Immediate rent relief available for commercial tenants in Government-owned buildings;
• Full payroll tax refunds for 19-20FY to small/medium businesses (payroll under $3 million) and deferrals of payroll tax until January 2021;
• Land Tax payment deferrals available for eligible small businesses;
• Waiver of liquor licensing fees for 2020 (NSW have also deferred gaming taxes);
• $500 million ‘Business Support Fund’ for hospitality, tourism, entertainment & retail sectors;
• $500 million ‘Working for Victoria Fund’ for employment opportunities.

Local Government Responses:

• Immediate rent deferrals for commercial tenants, sport clubs, community clubs in council owned assets, refunds on food licence fees and relaxed hardship application policies;

Mortgagor/Bank Responses:

• Most big banks are offering (upon application, on a case-by-case basis for home owners and businesses with loans under $10mil) up to a 6 month freeze on loan repayments meaning the loan term is either extended by 6 months or the loan repayments over the duration of the loan are increased to cover the 6 month freeze; easing cash flow strains for borrowers.
• They have also agreed not to enforce business loans for non-financial breaches of loan contract (such as a reduction in property value that would otherwise breach your loan).
• This will hopefully assist with cashflow and result in a lower number of ‘distressed sales’ which can severely impact the property market and economy as a whole.

For more information, click here for a comprehensive guide to these packages published by the Law Institute.

Moratorium on Evictions

The National Cabinet have collectively agreed to a ‘moratorium on evictions’ over the next six months for commercial and residential tenancies in financial distress who are unable to meet their commitments due to the impact of coronavirus. There has been no formal legislation of this agreement to date so the practicality and its application to leases remains largely unknown.

Tenants should note that this moratorium is only on evictions – not a rent holiday. It is most likely designed to protect businesses in the short term from any landlords using this crisis as a way to end their tenants’ leases and unreasonably force them out. However, it would be wrong for tenants to assume that this means that a landlord cannot evict them from their premises for any reason at all or that tenants can simply not pay rent for six months without a landlord seeking recourse. The moratorium is only said to apply to those tenants ‘in financial distress who are unable to meet their commitments due to the coronavirus’ and it is unclear as to what those criteria are at this stage.

Ordinarily, an eviction is not a quick process and requires a Notice of Breach, a Notice to Vacate and an Order for Possession/Warrant of Enforcement from VCAT or relevant jurisdiction. We suspect therefore that in the meantime, if any landlord were to serve an eviction notice they would likely not be able to complete the eviction as the Courts would not order it and/or the Police would not forcefully remove a tenant until guidelines were given from Government on this process.

Until legislation is enacted specifically addressing this issue, a landlord will still likely have recourse to call on any cash bond or security deposit held on behalf of a tenant for any failure to pay rent in the meantime.

Conclusion

The landscape is shifting daily as this crisis continues to unfold and this constant evolution continues to delay any legislative changes. The information in this article is intended to assist tenants and landlords but in no way constitutes legal advice. Until new legislation is enacted, the individual circumstances of each landlord and tenant will differ depending on the terms of the relevant lease.

In the meantime, Part 1 of our trilogy provides an overview of the legal perspectives while Part 3 offers some practical solutions to help guide the discussions of tenants and landlords as this crisis unfolds.

Parties are encouraged to seek legal advice specific to your circumstances before taking any action that may prejudice your position. For legal advice regarding any of the issues raised above, we recommend that you contact a member of the team at Best Hooper.

About Best Hooper – Victoria’s Property, Planning and Land Development Advisory Law Firm

Best Hooper are the oldest and most prominent developer focused law firm in Victoria who have served our community since 1886; through wars, recessions, depressions and pandemics. We are actively advising clients in relation to the COVID-19 outbreak on all property related matters including leasing, disputes, property transactions and planning advices and applications. We are continuously recognised as industry leaders in a variety of publications, including Doyles Guide and Best Lawyers.

If you require more information, please contact Giancarlo Romano, (03) 9691 0220 or gromano@besthooper.com.au or Robert McKay, (03) 9691 0244 or rmckay@besthooper.com.au.

Giancarlo Romano is a Senior Associate in the Best Hooper Property Team who represents private and corporate landlords and tenants across commercial, retail and residential leasing and all facets of property transactions.

Robert McKay is the Principal of the Best Hooper Disputes Team and he deals with a range of retail and commercial tenancy disputes in his daily practise.