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Guidelines for rent repayment agreements under the Residential Tenancies (COVID-19 Response) Act 2020

A note about these documents

The Guidelines for rent repayment agreements under the Residential Tenancies (COVID-19 Response) Act 2020 and Optional COVID-19 rent repayment agreement template provided above are intended to be used together to assist landlords and tenants in drawing up rent repayment agreements. 

On 23 April 2020, the Parliament of Western Australia passed the Residential Tenancies (COVID-19 Response) Act 2020 (the Act) to guide residential tenancies, long-stay agreements and accommodation agreements (for boarders and lodgers) during the COVID-19 coronavirus pandemic.

The Act allows tenants[1] and landlords[2] to enter into rent repayment agreements[3] where the tenant has not paid rent (or has paid reduced rent) during the emergency period[4] and stops landlords giving rent default notices without first entering into a rent repayment agreement.

If a tenant and landlord need to negotiate a rent repayment agreement, Consumer Protection can assist through its new COVID-19 Residential Tenancies Mandatory Conciliation Service. Call 1300 304 054 or visit https://www.dmirs.wa.gov.au/covidrentdispute.

Please note:

The following is a guide only. Feel free to draw up your own arrangement as there’s no set form for rent repayment agreements. The sample COVID-19 rent repayment agreement template on this page may assist.

Tenants and landlords do not have to enter into a formal arrangement as the provisions of the Act still apply to unpaid rent, whether parties have something in writing or not.

It’s important that both tenants and landlords read information about the Act (see www.dmirs.wa.gov.au/covidrenting) before drawing up an agreement as it determines some terms, an example being that a landlord cannot claim interest on a tenant’s unpaid rent.


Do tenants have to keep paying rent?

Yes, a tenant has to keep paying rent. The six-month moratorium on evictions is not a reason for tenants to not pay rent as rent will continue to accrue, so if a tenant doesn’t pay now, payment of all the rent arrears will have to be made later; and

If tenants are not affected by the COVID-19 but refuse to pay rent, and where mandatory conciliation confirms that COVID-19 has not impacted them financially then an owner may issue a remedial notice and subsequently apply to the Court or the State Administrative Tribunal for an order to terminate a tenancy. Call Consumer Protection for more information. 

As hard as it may be, it is recommended that tenants continue to pay their rent – as much as they can, when they can.

Do I have to enter a rent repayment agreement?

Landlords and tenants are not required to enter a rent repayment agreement, but if there is not one in place landlords cannot issue breach notices for non-payment of rent. 

These agreements will help preserve the tenancy and make clear the arrangements for what rent can be paid and whether the parties are agreeing to a waiver and/or deferral of the rent.

Do landlords have to agree to a rent reduction as part of a rent repayment agreement?

No, landlords don’t need to reduce rent repayments however they should strongly consider this option if they are able to as it may be in their best interests to do so. A tenant’s right to terminate their periodic lease remains during the emergency period and if a tenant on a fixed term tenancy is experiencing financial hardship as a consequence of COVID-19, they can also terminate their agreement prior to its end date.

What information do I need in my rent repayment agreement?

1. It is recommended that all agreements should contain the minimum basic information:

  • Date of agreement
  • Name of the landlord/s and the tenant/s
  • Property address
  • Reference to the original residential tenancy/accommodation agreement

2. Rent repayment agreements:

  • The Act allows the landlord and tenant to enter into a rent repayment agreement, and while it has to be in writing, they can negotiate their own terms.
  • The purpose of the document is to set out the agreed arrangements when a tenant is unable to pay some or all of the rent during the emergency period. Landlords are encouraged to be generous where they can. 
  • It is important for landlords and tenants to be clear about what they are agreeing to. This includes being clear about whether any part of the rent arrears will be waived or deferred, or a combination of these options. A waiver of all or part of the rent means that this amount never has to be paid. Deferral of part or all of the rent means that this amount will need to be paid at some time in the future.  
  • We encourage honest and open discussion of options. Suggestions include:
    • The landlord agrees to the tenant not repaying the accumulated rent debt, called a “waiver”, for some or all of the period.
    • The landlord agrees to the tenant only paying some of the accumulated rent debt, but more if they are able to, called “a conditional waiver”. 
    • The landlord agrees to the tenant paying a reduced rent for a period of time and deferring payment of the remaining rent until after the emergency period and putting in place a repayment plan that’s manageable.
  • Consider how long the tenant needs rent relief and include this period: 
    • By a start and end date;
    • By a set number of rent payments - weeks, fortnights or months; or
    • For the emergency period.
  • The parties may agree that, after the emergency or repayment period has ended, the tenant’s usual rent payments will start again.
  • The landlord and tenant can decide together the timeframe for repaying outstanding rent. The agreement should clearly set out:
    • Whether the payments are on top of, or include the tenant’s usual rent; and
    • Whether the outstanding rent repayment is made with the usual rent payments, or at another time.
  • Finally, the parties may include terms like:
    • The tenant can choose to make payments over and above the minimum required to pay the debt off sooner; or
    • If the agreement is terminated – the tenant’s outstanding debt must be repaid.

NOTE: If you are an applicant or recipient of the Residential Rent Relief Grant Scheme the rent repayment agreement should also show how the grant money given to the landlord is being passed on to the tenant either through an agreed period of reduced rent with the grant not expected to be repaid or where any accumulated rent debt is reduced by the grant amount. 

What terms cannot be included?

  • Landlords can’t ask tenants to pay interest on rent not paid during the emergency period.
  • Parties cannot agree to rent increases during the emergency period – except to return the amount to the original rent payable in the agreement.
  • If the agreement is being entered into to satisfy the terms and conditions of the Residential Rent Relief Grant Scheme, the reduction in rent or accumulated debt must not occur outside of the term of the current lease agreement (for example, a reduction in rent of $5 per week during a six month fixed term lease agreement would not be acceptable as it would likely take longer than six months for the full benefit of the grant to be passed on to the tenant).

Agreement checklist

Does your agreement

  • List all of the parties
  • List the address of the rental premises
  • Clearly state whether rent is being deferred, waived, reduced or a combination of these
  • Clearly state the amount of rent that is being waived, reduced or deferred, as appropriate
  • Include a start date and end date for the agreement
  • Clearly set out how and by when any rent arrears are to be paid

If you need help

If a tenant and landlord would like someone to help make sure the agreement they have drafted is clear or need help to negotiate a rent repayment agreement, Consumer Protection can assist through its new COVID-19 Residential Tenancies Mandatory Conciliation Service. Call 1300 304 054 or visit https://www.dmirs.wa.gov.au/covidrentdispute.

Disclaimer

The material in this guide is provided for general information only and does not constitute legal or financial advice or financial advice. It is not intended to replace consultation with a qualified professional and you should seek legal advice in regards to your specific situation.


[1] In this guide the term tenant means tenants in private rental homes, long-stay residents in residential parks, and boarders and lodgers.

[2] In this guide the term landlord means lessors, property managers, owners, park operators, and providers of boarding and lodging accommodation.

[3] A rent repayment agreement is defined in the Act as an agreement made between landlord and tenant about rent not paid by the tenant during the emergency period, and how that rent will be repaid.

[4] The emergency period is defined in s.4 of the Act as a six-month period commencing on 30 March 2020 and ending on 29 September 2020. This initial six-month period may be extended.

Consumer Protection
Guide / handbook
Last updated 25 Jun 2020

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