Real estate: 5 Minute Fix 13: COVID-19 relief measures, Vic Owners Corporations law reform , and updated NSW Retail Tenancy Guide

COVID-19 measures for commercial tenancies ending

COVID-19 measures for commercial leases under each State's and Territory's relevant legislation ended, or will soon end, on the following dates:

• ACT & Tas – 31 January 2021;
• NSW, Vic & WA – 28 March 2021;
• Qld – 30 April 2021;
• SA – 3 January 2021; and
• NT – 23 March 2021.

For further details regarding the status of the COVID-19 measures in each State and Territory, click here.

NSW – Updated Retail Tenancy Guide 2020 released

The NSW Business Commissioner published an updated Retail Tenancy Guide 2020 in December 2020.

While it is not a requirement at law for the landlord to provide this guide to tenants, we recommend this guide be provided to tenants or prospective tenants of retail leases as soon as, if not before, lease negotiations start, together with a copy of the proposed lease.

NSW – More dealings mandated for electronic lodgement

From Monday, 22 March 2021, in NSW a further 29 dealings will be "Required Dealings" which must be lodged electronically for registration via PEXA, Sympli or any other electronic lodgement network operator.

These newly mandated Required Dealings include:

• variations of lease;
• variations of mortgage;
• changes of name of registered proprietor;
• changes of name of caveator;
• changes of address for service of notices for caveator;
• positive covenants; and
• charges.

For the full list of "Required Dealings", click here.

ACT extension of rates exemption period for commercial land owners

On 1 January 2021, the Rates (Commercial Land) Exemption 2021 was taken to have commenced, replacing the Rates (Commercial Land) Exemption 2020 (No. 3).

The Exemption continues to provide a rates exemption for eligible owners of commercial land with an average unimproved value (AUV) of $2 million or less, and to owners of units on commercial land, where the AUV of the units is $2 million or less.

The rates exemption was previously provided for Q4 of 2019-2020 and Q1 & Q2 of 2020-21.

The Exemption extends this, and also applies for the month of January 2021 and Q3 of 2020-2021.

To be eligible for the extended rates exemption, eligible owners must apply by 31 March 2021.

Amendments to Queensland Community Titles Regulations have commenced

As at 1 March 2021, the Body Corporate and Community Management (Standard Module) Regulation 2020 came into effect replacing the existing Standard Module regulation. The new regulations modernise body corporate procedures by formally accommodating modern practices like online voting and electronic attendances at meetings and also include changes to improve protection for owners. 

Queensland COVID-19 turnover threshold for SME entities restored to $50 million

On 14 November 2020, the maximum annual turnover threshold for an SME entity to be eligible receive relief under the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld) was increased from $50 million to $120 million.

The Queensland Government passed the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Amendment Regulation 2021 to restore the maximum threshold to $50 million.

The amending regulation provides transitional provisions that will apply to leases that had become affected leases due to the increased threshold but now no longer qualify because of the reduced threshold. The amending regulation has no affect on the validity of an agreement or order made in respect of that lease before 5 February 2021.

Victoria's Owners Corporations law reform

The Owners Corporations and Other Acts Amendment Bill 2019 received Royal Assent on 23 February 2021. As such, a number of changes to the Owners Corporations Act 2006, the Retirement Villages Act 1986 and the Subdivision Act 1988 will come into effect on a date to be proclaimed or 1 December 2021, whichever is earlier. There are a number of changes, including:

• owners corporations will fall into one of 5 tiers:
  • tier 1: 100 + occupiable lots (and not a services only owners corporation);
  • tier 2: 51 to 100 occupiable lots (and not a services only owners corporation);
  • tier 3: 10 to 50 occupiable lots (and not a services only owners corporation);
  • tier 4: 3 to 9 occupiable lots (and not a services only owners corporation); and
  • tier 5: either a 2-lot subdivision, or a services only owners corporation.
• tier 1 owners corporations must arrange for their financial statements to be audited by a registered company auditor, a firm of registered company auditors or by an authorised member of CPA Australia, the Institute of Public Accountants or Chartered Accountants Australia and New Zealand ("the CA Bodies");
• at the least, tier 2 owners corporations must arrange for their financial statements to be reviewed by an independent person who holds a current practising certificate from one of the CA Bodies;
• tier 5 owners corporations will be exempt from complying with certain provisions of the Owners Corporations Act, including the requirements to take out reinstatement and replacement insurance and public liability insurance for the common property and shared services, and to hold annual general meetings;
• tier 1 and tier 2 owners corporations must prepare and approve a maintenance plan for the property;
• lot liability must be allocated equally between lots on a plan, unless there is a substantial difference in lot size, or if certain lots have (or the number of occupiers in certain lots have) a greater bearing on the consumption or use of common utilities or the cost of maintaining the common property; and
• lot entitlement must be allocated by the proportion that the market value of the lot bears to the total market value of all the lots on the plan.

Stay tuned for our more detailed Insights article to be issued soon.