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Are you an Impacted Tenant?

We recently reported on the extension of the Residential Tenancies (Amendment) COVID-19 Regulation (NSW) to 26 March 2021 and the matters that the Tribunal may take into account in determining whether a termination notice or termination order is fair and reasonable in the circumstances.

The Tribunal recently heard an application for a termination order and an order for payment of the bond. In Serious v Barlow; Barlow v Serious [2020] [1] the tenant submitted that he was an “impacted tenant” and therefore a termination notice or order could only be made if the landlord had participated in a good faith rent negotiation process and it was fair and reasonable in the circumstances to terminate the tenancy. A rent negotiation process had not taken place between the parties.

The Tribunal was required to determine whether the tenant was an impacted tenant as defined by the newly introduced section 228B of the Residential Tenancies Act 2010 (NSW)(Act). An impacted tenant means a tenant who is a member of a household impacted by the COVID-19 pandemic. A household is impacted by the COVID-19 pandemic if –

(a)  any 1 or more rent-paying members of the household have—

(i)  lost employment or income as a result of the impact of the COVID-19 pandemic, or

(ii)  had a reduction in work hours or income as a result of the impact of the COVID-19 pandemic, or

(iii)  had to stop working, or materially reduce the member’s work hours, because of—

(A)  the member’s illness with COVID-19, or

(B)  another member of the household’s illness with COVID-19, or

(C)  the member’s carer responsibilities for a family member ill with COVID-19, and

(b)  as a result of any of the matters stated in paragraph (a), the weekly household income for the household has been reduced by at least 25% compared to the weekly household income for the household before the occurrence of any of the matters.

The tenant submitted that he was an impacted tenant because his income was zero. The Tribunal accepted that the tenant’s income was zero and therefore satisfied paragraph (a) of the test under section 228B of the Act. However, the Tribunal did not accept that the tenant’s household income had reduced by at least 25% and therefore did not satisfy paragraph (b). The tenant failed to establish any income prior to April 2020. If the income was zero before the pandemic or if the tenant fails to establish income before the pandemic, then the tenant does not meet the statutory definition of an impacted tenant.

The Tribunal decided that a termination order should be made but suspended the order for 21 days to allow the tenant time to seek alternative accommodation and seek arts and entertainment government grants, amongst other things.



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