Update – New South Wales – COVID-19 – Retail and other commercial leases regulation

The Retail And Other Commercial Leases COVID-19 Regulation 2020 (NSW) (NSW Regulations) were amended on 3 July 2020 to clarify that:

  • a tenant is required to give a landlord evidence to prove its status as an “impacted lessee”; and
  • certain parts of the legislation are only meant to govern leases with “impacted lessees” (and not other leases).

These amendments remove some of the ambiguities that we referred to in our April update but unfortunately the government has still chosen to not be prescriptive on the exact nature of the “evidence” or timing requirements. Many landlords and tenants are acting cooperatively and collaboratively and have already finalised and documented rent relief deals despite the lack of guidance within the NSW Regulations, but we expect that the lack of prescriptive requirements on documents and timing will continue to cause landlords and tenants some difficulties as they try to deal with the economic fallout from the COVID-19 pandemic.