Further Update – New South Wales – COVID-19 – Retail and Other Commercial Lease Regulation

The Retail and Other Commercial Leases COVID-19 Regulation (No 3) 2020 (NSW) takes effect from 1 January 2021 and, in many ways, operates as an extension of the existing Covid-19 tenancy regulations but with some critical changes.

Importantly, the scope of the Regulations are now substantially narrowed and only apply to retail tenants who:

  • are eligible for Jobkeeper based on the new eligibility criteria from 4 January 2021 (ie regardless of previous eligibility)
  • had a turnover in the 2018-19 financial year of less than $5 million (previously the cap was $50 million)

Despite the title of the legislation suggesting otherwise, the new Regulations do not apply to commercial leases – however commercial tenants will still have certain rights preserved under the existing framework depending on the circumstances (eg the right to apply for mediation in the event of a dispute).

The new Regulations will expire on 28 March 2021 unless they are further extended or replaced.