In brief - Bill contemplates the passage of regulations to further prescribe specific rules governing landlords and tenants of retail and other prescribed leasing arrangements
The Queensland Parliament passed the COVID-19 Emergency Response Bill 2020 on 22 April 2020. The Bill provides various safeguards to mitigate the broad-ranging impact of the COVID-19 pandemic on the economy and members of the community.
Retail and other prescribed leases
Part 7 of the Bill addresses retail leases and other prescribed leases by establishing a regulation-making power. The Bill itself does not lay down substantive rules of law governing the practical issues experienced by landlords and tenants through the COVID-19 pandemic, but merely provides for the passage of subsequent regulation dealing with those issues.
In reference to the explanatory notes of the Bill, the policy objective of the Bill is to provide a legislative framework to facilitate the implementation of the good faith leasing principles provided in the National Cabinet Mandatory Code of Conduct (Code of Conduct). The powers will allow regulation to be made that will:
- prohibit the recovery of possession of premises
- prohibit the termination of a lease
- regulate or prevent the exercise or enforcement of any other right under a lease agreement
- exempt a particular type or class of tenants from the protection of the Bill
- require parties to comply with particular principles, a prescribed standard or code when negotiating or disputing a matter under a lease, and
- provide a dispute resolution process throughout the coronavirus pandemic
At this stage the regulation-making power is time limited to 31 December 2020, but the Bill does not provide a time in which any regulation itself will cease to be of effect. This will likely be dealt with in the regulation itself.
The type of leases that the Bill applies to are:
- a retail shop lease under the Retail Shop Leases Act 1994 (Qld), and
- a lease prescribed by regulation for this definition
This means that the Bill itself pays particular attention to retail leases but relies on the passage of a regulation to further prescribe other leasing agreements that the Bill will contemplate, such as commercial or industrial leases.
The Bill contemplates that any subsequent regulation will be applicable to relevant leases, sub-leases, licences or any other agreement under which a person grants a right to another person to occupy premises, other than a residence.
Small Business Commissioner
The Bill also establishes an office of Small Business Commissioner, which is relevant to a lease of a premises that is used wholly or predominantly for a small business (small business lease) and for a dispute relating to the small business lease (small business tenancy dispute).
The purpose of the Small Business Commissioner is to deliver advocacy functions and dispute resolution support for small businesses and to provide small businesses with a single point of contact for leasing disputes. The Commissioner will have powers to enable the regulation to be used to prescribe the dispute resolution procedure for small businesses.
The functions of the Small Business Commissioner include:
- providing information and advisory services about matters relevant to small businesses
- assisting small businesses in reaching an informal resolution for disputes relating to small business leases, and
- administering a mediation process in relation to small business tenancy disputes
What does this mean for landlords and tenants?
Until the contemplated regulations are passed, the Bill does not provide any further certainty in respect of the adoption of the Code of Conduct, its application and the rules surrounding it.
|Matthew Castley||Roman Hofmann|
|Leasing - commercial and retail|
|Colin Biggers & Paisley|
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