Four months after the introduction in WA of the Residential Tenancies (Covid-19 Response) Act 2020 (Covid Response Act) it is still not at all clear how many parts of this legislation will apply in practice. Statements such as "a six-month moratorium on residential tenancy evictions" are misleading as there are a number of circumstances under the Covid Response Act where a tenancy can be terminated, and the tenant evicted.
The main purpose of the emergency legislation is to provide some relief to both tenants and landlords. It is designed to work in tandem with the Residential Tenancies Act 1987.
The emergency period during which the Covid Response Act applies is due to expire on 23 September 2020. Recent outbreaks in Victoria and NSW could see this period extended in WA.
In WA one of the problems for both tenants and landlords is that the Magistrates Court (which has jurisdiction to determine residential tenancy disputes) does not publish its decisions, making it difficult to gauge how the emergency legislation is being applied in practice.
Complexities of the Act
One example of the complex nature of the Covid Response Act is its treatment of periodic tenancies. Periodic tenancies are tenancies where there is no fixed end date (as opposed to fixed term tenancies which have an end date). Under the Residential Tenancies Act 1987 the landlord can terminate a periodic tenancy by giving 60 days written notice. Under the Covid Response Act fixed-term tenancies ending during the emergency period are to continue as periodic tenancies. However, periodic tenancies can be ended by giving the normal 60 days written notice. This applies to both normal periodic tenancies which existed before the introduction of the Covid Response Act or fixed term tenancies which have converted into periodic tenancies under the Covid Response Act. In both instances the lease can be terminated by giving the tenant 60 days written notice.
While the Covid Response Act supersedes some provisions of the Residential Tenancies Act 1987 both landlords and tenants can continue to rely on other provisions of the original act which have not been affected by the emergency legislation. For example, the Residential Tenancies Act 1987 has always allowed both tenants and landlords to apply to the court to terminate a lease if they would otherwise suffer undue hardship. This provision continues to apply.
IN THE SECOND READING SPEECH FOR THE RESIDENTIAL TENANCIES (COVID-19 RESPONSE) BILL 2020 THE HON NICK GOIRAN, SHADOW MINISTER FOR COMMERCE SAID "AT THE MOMENT WE ARE FLIPPING BETWEEN BILLS FASTER THAN PEOPLE COULD FLIP HOTCAKES!"
How to apply the new provisions under the act – lessons from the NSW tribunal
Similar issues have arisen in NSW under the Residential Tenancies Act 2010 (NSW) and the regulations made under it as they relate to COVID-19. The NSW Civil and Administrative Tribunal have considered the question of undue hardship in the context of Covid 19. 1 The NSW legislation allows the landlord to terminate a lease if "in the special circumstances of the case, [they would] suffer undue hardship if the residential tenancy agreement were not terminated. The Tribunal did not consider it sufficient that the landlords and their two children were currently living with an elderly relation who was a high-risk category for Covid 19. The landlords' application for terminating the tenancy was partly based on the argument that they needed the property back so that the family could live separately from the husband's elderly mother to enable her to properly self-isolate.
The tenant successfully argued that the lease should not be terminated, and that the landlord had not established sufficient hardship to justify the termination. In making this decision the tribunal considered it relevant that COVID-19 is having a serious impact on many in the community and that the landlords' situation was not unique. Also relevant was that it would be difficult for the tenant's family to find other accommodation with restrictions for viewing properties in place.
1 Tawadros v Grubisic  NSWCATCD 1 t
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