COVID-19 commercial tenancies fact sheet and negotiations flowchart

This publication is for: 
Commercial tenancy

Commercial Tenancies (COVID-19 Response) Act 2020

How the Act and WA Code of Conduct (WA Code) apply for the extended emergency period.

Requirement of Act or WA Code 30 March 2020 to
29 September 2020
30 September 2020 to
28 March 2021
Landlord not permitted to take prohibited action for default in relation to non-payment of rent or failure to open premises (termination, eviction, interest on arrears and enforcing security or bank guarantee). all small commercial leases eligible tenants
Rent cannot be increased. all small commercial leases eligible tenants
An act or omission of the tenant required under law in response to the COVID-19 pandemic not to be considered a breach or grounds for action. all small commercial leases all small commercial leases
Code of Conduct requires:
  • good faith negotiation;
  • landlord to provide rent relief proportionate to tenant’s loss in turnover;
  • deferred rent to be paid after emergency period ends or end of the lease (whichever is earlier); and
  • lease term may be extended for same period for which rent deferred.
eligible tenants eligible tenants

 

A small commercial lease includes:

  • retail shop lease;
  • lease where the tenant is a small business;
  • lease where the tenant is an incorporated association; or
  • lease for a commercial purpose to an Aboriginal and Torres Strait Islander Corporation.

An eligible tenant is a tenant under a small commercial lease that:

  • has an annual turnover of less than $50 million; and
  • is eligible for the JobKeeper scheme or can show the same loss in turnover (30 per cent for a business or 15 per cent for a not-for-profit).

After 29 September 2020

If the tenant is an eligible tenant:

  • landlord cannot take prohibited action or increase rent;
  • the parties should negotiate in relation to further rent relief, can continue current arrangements or make a new agreement – rent relief should be adjusted to reflect changes in the tenant’s turnover; 
  • any rent that has been deferred is not payable until after 28 March 2021 (or end of the lease, whichever is earlier); and
  • an act or omission of the tenant required under law in response to the COVID-19 pandemic is not a breach or grounds for action.

If the tenant is not an eligible tenant:

  • landlord can take prohibited action in relation to defaults occurring after 29 September 2020;
  • landlord can take action for non-payment of rent between 30 March 2020 and 29 September 2020 (provided the unpaid rent is not the subject of a rent relief request or dispute that has not been finalised); 
  • any rent that has been deferred is not payable until after 28 March 2021 (or end of the lease, whichever is earlier); and
  • an act or omission of the tenant required under law in response to the COVID-19 pandemic is not a breach or grounds for action.

Need some assistance?

If you are experiencing difficulties with your landlord or tenant please contact the Small Business Development Corporation for advice.

Consumer Protection
Fact sheet
Last updated 04 Nov 2020

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