knowledge | 11 January 2021 |

COVID-19: Level 5 Restrictions Prompt Update to Protection for Residential Tenants

The Residential Tenancies Act 2020 (the “RTA 2020”) was enacted on 24 October as part of the government’s continuing response to COVID-19 for the protection of residential tenants.  It restricts residential tenancy terminations generally in those areas and during those periods of the pandemic when a 5km restriction applies to people’s movements. 

Specific protections for at risk tenants

The protection from termination under the RTA 2020 applies to all tenants affected by Level 5 movement restrictions. This protection is separate to, and runs alongside, the protections from termination and rent increase in place for tenants at risk of losing their tenancy due to the financial impact of COVID-19 (“at risk tenants”).  The protection regime for at risk tenants introduced by the Residential Tenancies and Valuation Act 2020 (the “RTVA”) has been extended, but in a modified way, from 11 January 2021 to 12 April 2021 by Part 3 of the Planning and Development, and Residential Tenancies Act 2020 (the “PDRTA”). For further detail on the specific protections for at risk tenants under the PDRTA, see our briefing.

The RTA 2020

The net effect of the measures in the RTA 2020, are:

  1. To supplement the specific protections in place for at risk tenants to provide additional protection from termination for all tenants affected by Level 5 movement restrictions, where those apply.
  • The interaction between the two protection regimes is different since the enactment of Part 3 PDRTA in place of the RTVA. Any at risk tenant, who qualifies for and claims protection from termination and rent increase under the PDRTA, will continue to attract the protections as set out in that legislation, while at the same time, being entitled to rely on protection from termination on the terms of the RTA 2020, where those apply. 
  1. To allow notices of termination to stand and be served as usual but to postpone the notice given for the duration of any relevant “emergency period” plus ten (10) days.
  • An “emergency period” is any period during which a person is confined to being within 5km of home under regulations introduced by the Government in response to the COVID-19 emergency.  Unlike initial legislation, The RTA 2020 has been very clearly drafted to keep pace with the spread of the virus and will automatically apply as the country, or certain areas of it, move in and out of any 5km movement restrictions.
  1. To allow tenants for whom a notice of termination has expired, but who are still in occupation of the property at the start of an emergency period, to remain in occupation for the entire of the emergency period plus a further (10) days.

Exclusions from Protection under RTA 2020

The RTA 2020 does not, however, protect tenants from termination of their tenancies where the tenancy is being terminated because of behaviour of the tenant or other occupiers or visitors:

  • which is anti-social (and, significantly in the context of Government-imposed restrictions for COVID-19  includes (i) the commission of an offence and (ii) “behaviour that causes or could cause fear, danger, injury, damage or loss to any person living, working or otherwise lawfully in the dwelling concerned or its vicinity”);
  • would invalidate any insurances in place; or
  • could cause damage to the property.

This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.

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