What is the eviction moratorium and how does it work?
The Residential Tenancies (COVID-19 Response) Act 2020 has implemented a six-month moratorium on evictions and other measures relating to residential tenancies to address the financial impacts of the COVID-19 coronavirus.
Under the new laws, renters cannot be evicted for not paying rent if they cannot afford to pay that rent due to COVID-19. Renters not affected by the financial impacts of COVID-19 can be evicted for choosing to stop paying rent and refusing to talk to the landlord about how rent arrears are going to be paid.
The moratorium period, or ‘emergency period’ is defined as starting from March 30, 2020 and can be reduced or extended by regulations to deal with changing circumstances, but is currently set to end on 28 September 2020.
Renters can be evicted during the emergency period if:
- a termination notice was issued prior to 30 March 2020 (even if the vacant possession date is within the emergency period);
- a court or tribunal ordered termination of a rental agreement before 24 April 2020;
- the renter or another person allowed to live in the premises:
- is causing damage, including to any shared areas or facilities, or
- has caused injury to the landlord/agent or any other person, including neighbours, and the landlord/agent has obtained a court order terminating the agreement;
- the landlord is suffering hardship and has obtained a court order terminating the agreement. An example of the landlord suffering hardship could be if the landlord has lost their job and needs to move back into the premises. In this circumstance, a renter may be able to seek compensation orders from the court for any additional expenses caused by the termination of the agreement. Expenses can include relocation costs.
Renters also cannot be evicted during the emergency period if a lender repossesses the property or if a fixed-term lease or accommodation agreement comes to an end.
IMPORTANT: A landlord/agent cannot evict a renter without consent or a court order. If your landlord is trying to proceed with an eviction or termination at this time please book in to speak with on of our tenant advocates by following the links on the ‘Need Advice’ tab of this website. Additionally, we recommend you contact Consumer Protection (https://www.commerce.wa.gov.au/consumer-protection) if you believe you are being unlawfully evicted from your property.
What other measures for renters are there in the new COVID-19 Response Act?
Other elements of the new laws include:
- a ban on rent increases during the emergency period;
- fixed-term tenancies will automatically convert to periodic tenancies if they expire during the period unless another fixed-term agreement is entered into;
- landlords do not have to carry out non-urgent repairs if they themselves are experiencing financial hardship or are not able to access the premises due to restrictions on movement; and
- renters experiencing COVID-19 related financial hardship who end a fixed-term tenancy with the correct notice prior to its end date will not incur break lease fees, but will still be liable for damage and rent arrears.
Landlords or renters who are experiencing undue hardship can apply to the Magistrates Court or State Administrative Tribunal to have the tenancy agreement terminated.
Affected landlords and renters are urged to negotiate an agreement about when rent will be paid in a bid to preserve the tenancy during the six-month period. However, if agreement cannot be reached, the landlord and renter will be required to participate in a mandatory conciliation requirement facilitated by the Commissioner for Consumer Protection. This conciliation process aims to relieve pressure on the Magistrates Court and State Administrative Tribunal. The Commissioner for Consumer Protection is establishing the new mandatory conciliation process by developing the necessary forms and other procedures. This conciliation service will be available from 18 May.
Who do the new laws apply to?
The laws apply to all residential tenancies including those in public and government housing, park homes as well as boarders and lodgers. Boarders and lodgers are classed as having ‘accommodation agreements’ under the new laws.
Can rent be increased during this period?
Rent cannot be increased during the emergency period even if a new agreement has been negotiated.
Where rent is calculated by reference to income, rent can increase if there has been an increase in income as long as the method of calculating rent does not change. Rent cannot be increased due to a change in the method of calculating your rent.
Where a renter and a landlord agree to a rent reduction due to financial hardship during the emergency period, the rent may be increased during the emergency period to no more than the amount that it was prior to the rent reduction agreement being made, provided both the renter and the landlord agree.
I have lost income due to COVID-19 and can’t pay rent- what do I do?
Renters – including tenants, long-stay residents in residential parks, boarders and lodgers – experiencing difficulty paying rent due to financial hardship caused by COVID-19 should contact their landlord as soon as possible.
Renters and landlords are encouraged to be open about their situation and explore possibilities to get through this crisis together. Options for discussion include whether the tenancy or accommodation agreement can be varied to provide:
- deferring rent payments to a specified later date when the renter’s income improves;
- a decrease in rent for a specified period; or
- terminating the lease without penalty.
Any agreement to change rent arrangements should be put in writing.
Deferment of rent: Landlords may be willing to agree to suspend rent payments to a particular date or for a particular period. While a rent-free period removes the immediate pressure to pay rent, it means a renter will have to repay the amount owing once the suspension period ends. Make sure you set out in your rent repayment agreement details of how the renter will repay the rent owed to the landlord. Importantly, the landlord cannot ask the renter to pay interest on the rent owed.
Decrease in rent: Landlords may agree to decrease rent for a specific period of time. Again, record this in writing and if the rent increases during the COVID-19 emergency period it cannot be more than the original rate and only if the landlord and renter agree.
Terminate the lease: If no other options are available, a renter may consider terminating their lease. To terminate a periodic (open-ended) or a fixed-term lease, a renter is required to give the landlord not less than 21 days’ notice in writing before the date they intend to move out. Importantly, a renter may only terminate a fixed-term tenancy if they are experiencing financial hardship due to COVID-19.
It is recommended that renters consider giving the landlord proof of financial hardship such as a letter from the renter’s employer or former employer. Landlords may also request this information. Also see the information below under the heading “My landlord is asking for evidence of income loss – do I have to provided them with this information?”.
The notice period to terminate accommodation agreements (for boarders and lodgers) is 7 days.
If a renter terminates a fixed-term tenancy or accommodation agreement prior to its end date for reasons of financial hardship due to COVID-19, the landlord is not entitled to compensation because the agreement was terminated early.
See our fact sheets under ‘Ending a Tenancy’ on the Fact Sheets page of this website.
There is also more information from Consumer Protection on:
- ending a residential tenancy - Lessor ending a tenancy and Tenant ending a tenancy.
- ending a residential park tenancy – Ending an on-site tenancy
- details for Boarders and lodgers.
For information about income assistance for anyone impacted by COVID-19 coronavirus, visit the Department of Treasury.
State Government Rent Relief Grants
The State Government is making available $30 million for grants of up to $2,000 for Western Australian residential tenants who lost their jobs on or after 20 March 2020 and are facing financial hardship due to the COVID -19 pandemic.
To find out more about eligibility for this payment visit the Residential Rent Relief Grant Scheme page for details.
My landlord is asking for evidence of income loss - do I have to provide them with this information?
The moratorium on evictions is for renters who are unable to pay their rent because of financial distress due to COVID-19.
A landlord may ask for evidence of a significant decrease in wages or job loss. This might include emails, letters or other communication between an employee and employer during the COVID-19 crisis. While renters have no obligation to provide this information, not doing so may affect the ability to negotiate an outcome regarding rent with your landlord.
It is not reasonable for a landlord to ask a renter for evidence of savings or spending habits by demanding bank or superannuation statements.
A landlord should not provide a renter with any financial advice regarding superannuation. The Australian Securities and Investment Commission has advice on this and how to report misconduct by a landlord.
If you are suffering financial stress contact the Financial Counsellors Association of WA.
Do I have to pay back missed rent payments to my landlord?
A renter is responsible for any rent payable under a residential tenancy agreement unless the renter and the landlord agree otherwise. Landlords have been encouraged to consider whether they can support tenants, if they can afford to do so, by either reducing the rent for a period of time or waiving part of the rent arrears.
Landlords and renters will need to agree on how any rent arrears are going to be paid and when.
Renters and landlords should attempt to come to a mutual agreement about any rent reductions and any repayment requirement. Any agreement should be put in writing.
If you are having trouble negotiating the above with your landlord please book in to speak with one of our tenant advocates.
What about if my landlord is taking me to court for things that happened before COVID-19?
Any termination process due to non-payment of rent or otherwise that started before 30 March 2020 can continue. Breach or termination processes that started on or after 30 March 2020 are subject to the terms of the Residential Tenancies (COVID-19 Response) Act 2020.
My landlord has issued me with a termination notice- do I have to move out?
No. There are only three ways a tenancy agreement can be terminated:
- by the renter issuing a notice of termination and moving out;
- by agreement between the renter and the landlord; or
- by court order.
What if I can’t reach an agreement with my landlord?
As part of the COVID-19 Response Act a mandatory conciliation service has been established by Consumer Protection to manage disputes arising between tenants and landlords.
This service is available if you have a dispute listed below that occurred during the COVID-19 coronavirus pandemic emergency period, which is 30 March 2020 to 29 September 2020:
- rent repayment – within three months of the end of the emergency period
- termination – within six months of the event date
- repairs – within six months of the event date
- attempted rent increase – within six months of the event date
- modification of terms of agreement (from fixed-term to periodic) – within six months of the event date
Note: while this informal process is in place to help landlords and tenants reach agreement without putting strain on the Magistrates Court and State Administrative Tribunal system, certain matters can go straight to court/tribunal including:
- undue hardship
- serious injury/damage to premises
- termination of perpetrator’s interest in lease due to family and domestic violence
For more information on the mandatory conciliation process visit the Consumer Protection information page:
Applications to the conciliation service can be made here:
What if I am self-isolating and the landlord or agent wants access to the property?
You should advise your landlord if you are self-isolating, especially if the landlord plans to visit or enter the property. During self-isolation, only identified essential service providers or members of the household should enter the home.
Some agents and landlords have been conducting routine inspections via video link (zoom, skype, messenger etc) which may be an option to suggest instead of having people physically come through your rental property at this time.
If a landlord or agent is insisting on physical access to your rental property in spite of the above please contact us for advice or inform Consumer Protection on 1300 304 054.
What about repairs and maintenance?
During the six-month emergency period, if urgent repairs to a rental property are required, these still need to be completed.
However, as regards non-urgent repairs during the emergency period, landlords are not required to maintain the premises as per the maintenance terms if:
- landlords cannot afford to do so due to financial hardship caused by COVID-19; or
- landlords cannot access the premises for reasons resulting from COVID-19.
During self-isolation, only identified essential service providers or members of the household should enter a home.
Where a renter is practising social distancing it may still be beneficial to assist the landlord to undertake necessary repairs to the property (if you wish them to do so) by providing access while at the same time limiting the number of people in the home to not more than 10 people with ensuring at least 4 square metres of space for each person. These limitations may vary depending on government recommendations and good social distancing practices. It is in renters’ interests to assist the landlord to undertake repairs and they should negotiate a suitable arrangement with the landlord. For example, a renter may be able to sit in the backyard while the repairer is in the home.
Renters should ensure appropriate hygiene measures are taken by anyone visiting. Tradespeople should minimise touching anything not connected with the repair and use an alcohol hand rub when they enter and exit the premises. Renters should discuss expectations with the landlord.
Required notice periods continue to apply during the COVID-19 emergency period.
For mor information on the Residential Tenancies (COVID-19 Response) Act 2020 please visit the Consumer Protection information page.
You can find the complete Residential Tenancies (COVID-19 Response) Act 2020 legislation on the Parliament of WA web page.