On 14 July 2021, the NSW Government passed the Retail and Other Commercial Leases (COVID-19) Regulation 2021 which limited the exercise of certain rights by a lessor under retail and other commercial leases for a breach of the lease if:

• the lessee is a business that qualifies for certain grants due to the impact of the COVID-19 pandemic; and
• the breach is a prescribed breach that occurs between 13 July 2021 and 20 August 2021.

Despite this, the 2021 Regulations did not initially provide for rent relief (waiver or deferrals of rent), or prohibit the increasing of rent under a lease as the Regulations made in 2020 did - they only prohibited landlords from taking certain "Prescribed Action" against a tenant between 13 July 2021 and 20 August 2021.   On 13 August 2021, in response to the surge of COVID-19 cases, the NSW Government passed the Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2021 which:

• extended the Prescribed Period to 13 January 2022 (so that the Prescribed Period became the 6 month period from 13 July 2021 to 13 January 2022); and
• re-introduced the requirement for landlords and tenants to renegotiate the rent payable under Impacted Leases, in order to take into account the impact of the COVID-19 pandemic and the leasing principles set out in the Code.  

This update from Property and Commercial Special Counsel Alex Bentancor takes a look at the latest changes, and how they're set to impact both retail and commercial landlords and tenants.

A wide range of articles and government announcements have been published concerning the status of retail and commercial leases in the wake of the government mandated restrictions on trade and business operations that have come about as a response to the evolving COVID-19 crisis.  

Despite this, many tenants, especially commercial tenants who were not subject to the Retail Leases Act 1994 (NSW), were still uncertain as to what these announcements meant for them.

These uncertainties have now been removed in New South Wales, through the proclamation of the Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW), which apply from 24 April 2020 until 24 October 2020.