knowledge | 18 November 2020 |
COVID-19: Level 5 Restrictions Prompt Update to Protection for Residential Tenants
The Residential Tenancies Act 2020 (the “Second Act”) 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.
The First Act
The Residential Tenancies and Valuation Act 2020 (the “First Act”) already currently provides protection against tenancy terminations and rent increases for certain “at risk” residential tenants during the pandemic. For further detail on the purpose and effect of the First Act 2020, see our briefing on the measures introduced under it here.
The Second Act
The net effect of the measures in the Second Act are:
- To provide protection for circumstances not already covered by the First Act.
Any “at risk” tenant, who qualifies for and claims protection under the First Act, will continue to attract the protections as set out in that legislation (ie no termination for non-payment of rent and no rent increases up to an including 10 January 2021). The measures proposed in the Second Act will apply during “emergency periods” within the meaning of the Second Act, where the protections in the First Act do not apply.
- 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 Second Act 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.
- 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 the Second Act
The Second Act 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.