QLD Introduces New COVID-19 Regulations For Waiver and Deferral of Rental Payments

On 8 May 2020, the Land (COVID-19 Emergency Response—Waiver and Deferral of Rents and Instalments) Regulation 2020 (Qld) (‘the Regulations’) were published on the Queensland Legislation Website. According to the Explanatory Statement, the purpose of the Regulations is to establish a framework for the Minister to provide relief (wholly or partially) from the necessity of paying rent under the Land Act 1994 (Qld) and the Land Regulation 2009 (Qld), in response to the socioeconomic impacts of the COVID-19 pandemic.

The purpose of the Regulations is achieved in two ways. Firstly, Part 2 of the Regulations provides the waiver of rental payments for tenures that meet certain eligibility criteria. Secondly, Part 3 of the Regulations provide the Minister with a discretionary power to either waive rental payments for particular tenures or to defer rental payments or installments for particular tenures.

Initial Waiver of Rent for Eligible Tenures

In order to be eligible for the 6-month initial waiver starting from 1 April 2020, leases, licences, and permits must fall within one of the following rental categories established in the Land Regulation 2009 (Qld):

• primary production (category 11.1 or 11.2),
• business (category 13),
• large sporting and recreation clubs (2000 members or more) ((category 14.2),
• communication sites (category 15.1, 15.2, 15.3, 15.4 or 15.5) or
• divestment (category 16).

Notably, the waiver will apply irrespective of whether the tenure is held by an individual or company. Leases, licences and permits held by a federal, state or local government entity, a statutory authority or a government-owned corporation are  not eligible for the initial waiver.

The threshold amount for determining the waived amount of the rent for an eligible tenure exempting tenures under category 15 (communication sites) will be determined by a formula set out in the Regulations. The threshold amount is dependent on the usual amount of minimum rent for the tenure for the relevant rental period.

If the usual amount of rent for the relevant rental period is equal to or exceeds the threshold amount or if the tenure falls within category 15, a formula set out in section 8 of the Regulations will determine the waived amount. Alternately, if the usual amount of the rent for the relevant period is:

• equal to or exceeds the usual amount of the minimum rent for the relevant period but
• is less that the threshold amount,

an alternative formula set out in section 9(2) of the Regulations will determine the waived amount.

Waiver or deferral of rent or installments by Minister

Part 3 enables the Minister to waive the payment of rent or defer the payment of rent or installments. The Minister may grant a waiver or deferral provided the Minister considers it appropriate to do so in response to the COVID-19 emergency. The Minister is required to publish the notice of waiver or deferral on the department’s website.

The specific requirements as to the contents of the waiver or deferral notice are listed in section 10(2)-(3) of the Regulations. These requirements include the tenure to which the notice applies, the applicable rental category, the amount or proportion of the rent that is waived and the relevant time period. Under section 12 of the Regulations, the Minister may amend a waiver or deferral notice by publishing an amended notice on the department’s website that replaces the old notice.

Consequential Matters

If before the announcement day of a waiver under Part 2 or 3, the holder of the tenure pays in part or in full the amount of rent for the tenure for the relevant waiver period, then the Minister must refund or credit the holder of the tenure the residual amount for the payment period. This may be particularly relevant in light of the retrospective operation of the Regulations from 1 April 2020.

Benefits and Costs of Implementation

The Explanatory Statement refers the to the $4 billion package announced by the Queensland government on 23 March 2020 which among a variety of other goals, was intended to help provide ““rent relief for businesses who rent premises from the state government.” The initial waiver provided in the Regulations will result in approximately $33.8 million in forgone revenue to the Consolidated Fund. Furthermore, this forgone revenue will increase if the waiver is extended for a longer duration or to other tenures under the Land Act.

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Land (COVID-19 Emergency Response—Waiver and Deferral of Rents and Instalments) Regulation 2020 (Qld) and supporting documents available from TimeBase’s LawOne Service