Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2020 (NSW)
New South Wales
Retail and Other Commercial Leases
(COVID-19) Amendment Regulation 2020
under the
Retail Leases Act 1994
Her Excellency the Governor, with the advice of the Executive Council, has made the following
Regulation under the Retail Leases Act 1994.
DAMIEN TUDEHOPE, MLC
Minister for Finance and Small Business
Explanatory note
The objects of this Regulation are as follows—
| (a) | to clarify that lessors are prohibited from taking certain action in respect of commercial leases to which impacted lessees are party, | |||
| (b) | to require impacted lessees to give lessors— | |||
| ||||
| (c) | to clarify the application of certain clauses to impacted lessees. |
This Regulation is made under the Retail Leases Act 1994, including sections 85 (the general regulation-making power) and 87 and under section 202 (the general regulation-making power) of the
Conveyancing Act 1919.
This Regulation is made with the agreement of the Minister for Customer Service, being the Minister administering the Conveyancing Act 1919.
Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2020 [NSW]
Retail and Other Commercial Leases (COVID-19) Amendment
Regulation 2020
under the
Retail Leases Act 1994
1 Name of Regulation
This Regulation is the Retail and Other Commercial Leases (COVID-19)
Amendment Regulation 2020.
2 Commencement
This Regulation commences on the day on which it is published on the NSW legislation website.
Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2020 [NSW]
Schedule 1 Amendment of Retail and Other Commercial Leases (COVID-19) Regulation 2020
| Schedule 1 | Amendment of Retail and Other Commercial |
| Leases (COVID-19) Regulation 2020 |
[1] Clause 6 Prohibitions and restrictions relating to commercial leases
Omit “a lessee” from clause 6(5). Insert instead “an impacted lessee”.
[2] Clause 6(5)(a)
Omit “a commercial lease”.
Insert instead “the commercial lease to which the impacted lessee is a party”.
[3] Clause 6(5)(b) and (6)
Insert “impacted” before “lessee” wherever occurring.
[4] Clause 7 Obligation to renegotiate rent and other terms of commercial leases before
prescribed action
Insert before clause 7(1)—
(1A) This clause applies to a commercial lease to which an impacted lessee is a
party (an impacted lease).[5] Clause 7(1), (3) and (4)
Omit “a commercial lease” and “the commercial lease” wherever occurring.
Insert instead “an impacted lease” and “the impacted lease”, respectively.
[6] Clause 7(1)
Omit “an impacted lessee”. Insert instead “the impacted lessee concerned”.
[7] Clause 7(2)
Omit the subclause. Insert instead—
(2) Any party to an impacted lease may request the other parties to renegotiate the
rent payable under, and other terms of, the impacted lease.
[8] Clause 7(3A) and (3B)
Insert after clause 7(3)—
(3A) An impacted lessee must give the lessor the following in respect of the
impacted lease—
(a) a statement to the effect that the lessee is an impacted lessee, (b) evidence that the lessee is an impacted lessee. (3B) If the impacted lessee does not comply with subclause (3A), the lessor is taken
to have complied with this clause.[9] Clause 10 Lessor action for non-COVID-19 pandemic related reasons
Omit “See leasing principle No. 2 in the National Code of Conduct.” from the note to the clause.
[10] Clause 13
Insert after clause 12—
Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2020 [NSW]
Schedule 1 Amendment of Retail and Other Commercial Leases (COVID-19) Regulation 2020
13 Evidence of impacted lessee status—savings provision
(1) The amendments to clause 7 made by the Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2020 extend to renegotiations
commenced but not completed before the commencement of the amendments.
(2) For the avoidance of doubt, the amendments do not extend to a matter for
which a retail tenancy claim has been made under section 71 of the Act.
Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2020 [NSW]
Schedule 2 Amendment of Conveyancing (General) Regulation 2018
| Schedule 2 | Amendment of Conveyancing (General) |
| Regulation 2018 |
[1] Schedule 5 Commercial leases—COVID-19 pandemic special provisions
Omit “a lessee” from clause 4(5) to the Schedule. Insert instead “an impacted lessee”.
[2] Schedule 5, clause 4(5)(a)
Omit “a commercial lease”.
Insert instead “the commercial lease to which the impacted lessee is a party”.
[3] Schedule 5, clause 4(5)(b) and (6)
Insert “impacted” before “lessee” wherever occurring.
[4] Schedule 5, clause 5(1A)
Insert before clause 5(1)—
(1A) This clause applies to a commercial lease to which an impacted lessee is a
party (an impacted lease).[5] Schedule 5, clause 5(1), (3) and (4)
Omit “a commercial lease” and “the commercial lease” wherever occurring.
Insert instead “an impacted lease” and “the impacted lease”, respectively.
[6] Schedule 5, clause 5(1)
Omit “an impacted lessee”. Insert instead “the impacted lessee concerned”.
[7] Schedule 5, clause 5(2)
Omit the subclause. Insert instead—
(2) Any party to an impacted lease may request the other parties to renegotiate the
rent payable under, and other terms of, the impacted lease.
[8] Schedule 5, clause 5(3A) and (3B)
Insert after clause 5(3)—
(3A) An impacted lessee must give the lessor the following in respect of the
impacted lease—
(a) a statement to the effect that the lessee is an impacted lessee, (b) evidence that the lessee is an impacted lessee. (3B) If the impacted lessee does not comply with subclause (3A), the lessor is taken
to have complied with this clause.[9] Schedule 5, clause 8
Omit “See leasing principle No. 2 in the National Code of Conduct.” from the note to the clause.
[10] Schedule 5, clause 11
Insert after clause 10—
Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2020 [NSW]
Schedule 2 Amendment of Conveyancing (General) Regulation 2018
11 Evidence of impacted lessee status—savings provision
(1) The amendments to clause 5 made by the Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2020 extend to renegotiations
commenced but not completed before the commencement of the amendments.
(2) For the avoidance of doubt, the amendments do not extend to a matter for
which proceedings have commenced in a court.
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