WA Introduces Act To Clarify Residential Tenancy Rights During COVID-19

On 16 April 2020, Minister for Commerce John Quigley introduced the Residential Tenancies (COVID-19 Response) Bill 2020 (WA) (“the Bill”) to the Western Australian Legislative Assembly. The Bill passed the lower house on the same day, and passed the Legislative Council with amendments on 17 April 2020. The Legislative Assembly agreed to the amendments and the Bill passed both houses of parliament on 20 April 2020. The Bill received the Royal Assent on 23 April 2020.

The Residential Tenancies (COVID-19 Response) Act 2020 (WA) (“the Act”) contains provisions made in response to the COVID-19 pandemic to ensure the operation of residential tenancies, and to accommodate for public safety practices that are in line with orders made under the Emergency Management Act 2005 (WA) (“the Emergency Act”). The Act also contains amendments to the Residential Tenancies Act 1987 (WA) (“the Tenancies Act”) and the Residential Parks (Long-stay Tenants) Act 2006 (WA) (“the Residential Parks Act”).

Section 4 of the Act defines the emergency period as a period that started on 30 March 2020. The emergency period is to end on 29 September 2020, if not earlier, to be prescribed by regulation. The Act is yet to fully commence.

Tenancy Agreements during the Emergency Period

Part 2 of the Act contains provisions regarding long-stay agreements as under the Residential Parks Act, and residential tenancy agreements as under the Tenancies Act. Division 1 of Part 2 provides that regarding these agreements, for the duration of the emergency period:

• Rent cannot be increased, even at renegotiation of a lease renewal during the emergency period
• Owners will not be required to maintain and repair under a tenancy agreement if they are unable to do so due to financial hardship caused by the pandemic, or they are unable to access the premises due to a direction given under either the Emergency Act or the Public Health Act 2016 (WA)
• Fixed-term tenancies that end during the emergency period will continue as a periodic tenancy
• In the case of repossession of property, the tenancy agreement will continue to operate as though the possessor entered into the tenancy agreement themselves
• Rent default notices are to only be given where the tenant has failed to make payments in accordance to a rent repayment agreement
• An owner cannot recover interest on rent that is not paid during the emergency period

Termination of Tenancy Agreements

Division 2 of Part 2 of the Act deals with termination of tenancy agreements during the emergency period. Under section 17 of the Act, tenancy agreements cannot be terminated during the emergency period, except for in limited circumstances. These circumstances include termination due to family violence, where the tenant is causing serious harm to the premises, or where the tenant causes injury to a landlord, their representative, or a person in adjacent premises.

A termination notice can be given for non-payment of rent, if:

• A tenant fails to pay rent according to their agreement, that is due in the emergency period, and
• The failure to pay rent is not due to financial hardship caused by the COVID-19 pandemic

In these circumstances, the landlord can give a remedial notice to the tenant notifying them of the failure to pay, and offering them to enter into a rent repayment agreement. Failure to pay the rent, or enter into an agreement within 60 days of receiving this notice can lead to termination of the tenancy agreement.

Under section 20, a tenant can terminate a tenancy agreement if the following requirements are satisfied:

• The notice is given in accordance with either section 67(1) of the Tenancies Act, or section 38 of the Residential Parks Act
• The notice is not given less than 21 days before the agreement is to terminate
• Vacant possession of the premises is given on or before the date of termination

Section 67(1) of the Tenancies Act requires a notice of termination in relation to residential tenancy agreements to:

• Be in writing
• Signed by the tenant
• Identify the premises subject to the agreement
• Specify the day the tenant will vacate the premises

Section 38 of the Residential Parks Act states similar requirements in a notice of termination for long-stay agreements.

Section 20(2) of the Act additionally provides that tenants that suffer financial hardship caused by the COVID-19 pandemic can give a notice to terminate on a day earlier than the last day of a fixed term agreement so long as the notice is given in accordance with either section 67(1) of the Tenancies Act, or section 38 of the Residential Parks Act. This section also states that an owner is not entitled to compensation for loss arising from termination under this section.

Additional Provisions

Part 3 of the Act extends similar provisions to accommodation agreements, as Part 2 does to tenancy agreements. Accommodation agreements are defined in section 3 as both express and implied agreements which allows a boarder or lodger to occupy residential premises. These agreements are not required to be in writing, and do not need to be an exclusive right to occupy the entire premises.

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Residential Tenancies (COVID-19 Response) Act 2020 (WA), Bill and supporting documents available from TimeBase’s LawOne Service