Written by Chris Wheeler & Liam Carroll
While masks, lockdowns and exclusions from premises have largely ended in the Territory, the legislative response to COVID appears to be far from over.
Key points
- In news that could catch many landlords and tenants throughout the Territory off-guard, the ACT Government extended the public health emergency declaration on 12 November 2021 for another 90 days.
- Accordingly, the Leases (Commercial and Retail) COVID-19 Emergency Response Declaration 2021 (“Declaration”) reviewed in our previous alert on 2 September 2021 will continue to apply until at least 11 February 2022.
- The Declaration is designed to assist commercial tenants with leases subject to the Leases (Commercial and Retail) Act that have suffered financial difficulty as a result of COVID-19.
- This means that landlords are still required to engage in good faith negotiations prior to taking enforcement action like issuing a termination notice or seeking to recover unpaid rent against eligible tenants.
On 12 November 2021 the ACT Government announced a further extension to the period of emergency under section 119(4) of the Public Health Act 1997.
The extension of the emergency declaration in the ACT means that the Leases (Commercial and Retail) COVID-19 Emergency Response Declaration 2021 (“Declaration”) will continue to apply until at least 11 February 2022 (and until the ACT ceases to have an emergency declaration in place).
We expect this may catch a number of landlords and tenants off guard given the relative normality that has returned to Canberra over recent months.
The Declaration has been in constant effect since its introduction on 12 August 2021 and applies to that whole period.
The purpose of the Declaration is to assist commercial tenants with leases subject to the Leases (Commercial and Retail) Act that have suffered financial difficulty as a result of COVID-19.
As the Declaration is still in effect, landlords are still required to engage in good faith negotiations prior to taking enforcement action such as issuing a termination notice or seeking to recover unpaid rent. Tenants who are impacted by the Covid emergency and whose monthly turnover is still in decline above the prescribed thresholds compared to their 2019 or 2020 corresponding monthly turnover (as applicable) will continue to be entitled to rent relief.
For further details regarding the Declaration, please see our previous alert on 2 September 2021.