Michael Byrnes is quoted in Lawyers Weekly | Lawyers should think twice before appearing on reality TV
While it might seem like a good, fun and maybe even enriching experience to go on the reality TV show journey…
The objective of the Regulation is to give effect to the Act to: On 24 April 2020 Victoria passed the COVID-19 Omnibus (Emergency Measures) Act 2020 (Act) for the purpose of temporarily modifying certain laws in response to the COVID-19 pandemic.
On 1 May 2020 Victoria passed the COVID-19 Omnibus (Emergency Measures) (Commercial Leases and Licences) Regulations 2020 (Regulations) to implement the modification of laws relating to certain retail leases and non-retail commercial leases and licences.
Code not incorporated
Despite the National Cabinet Mandatory Code of Conduct — SME Commercial Leasing Principles during COVID-19 (Code) adopted by National Cabinet on 7 April 2020, the Act and the Regulation do not incorporate or refer to the Code.
This approach differs from the Retail and Other Commercial Leases (COVID-19) Regulation 2020 passed in New South Wales which implemented the general principles in the Code.
Summary of Regulation
What does it do?
The objective of the Regulation is to give effect to the Act to:
When does it apply?
The Regulations were made on 1 May 2020 and will apply for a six month period retrospectively from 29 March 2020 to 29 September 2020 (Relevant Period).
As the Regulations apply retrospectively, they do not apply to an eligible lease entered into or which came into effect after 29 March 2020. This means the Regulations would not capture a lease which comes into existence as a result of an exercise of an option to renew an existing lease.
What is an eligible lease?
Under the Act, an eligible lease means a retail lease under the Retail Leases Act 2003 (Vic) or non-retail commercial lease or licence:
The Regulations do not apply to a tenant who is part of a related entity with an aggregate turnover in excess of $50M.
The Regulations specifically excludes any lease or licence under which the premises are wholly or predominantly used for agricultural, pastoral, horticultural, grazing or farming operations.
What prohibitions and restrictions apply?
During the Relevant Period every eligible lease is taken to have the following provisions:
What a landlord cannot do?
During the Relevant Period the landlord must not take the following action under an eligible lease for non payment of rent if the tenant requests rent relief from the landlord and satisfies some evidentiary requirements:
During the Relevant Period a tenant under an eligible relief is entitled to request rent relief from the landlord.
The tenant’s request for rent relief must be in writing and be supported by:
The landlord must offer the tenant rent relief within 14 days of receiving the tenant’s request or such other time frame as agreed between the landlord or tenant in writing.
The landlord must offer rent relief to the tenant for the Relevant Period which:
The landlord and tenant must negotiate the landlord’s offer of rent relief in good faith.
The rent relief agreed between the landlord and tenant can be given effect by:
The Regulations do not prevent the tenant from requesting further rent relief during the Relevant Period.
The landlord and tenant may refer any dispute to the Small Business Commission for mediation.
Despite the mediation process not being mandatory, proceedings can not be commenced in the Victorian Civil and Administrative Tribunal or any court of competent jurisdiction unless the Small Business Commission has certified that the mediation has failed or is unlikely to resolve the dispute or otherwise with leave of the Supreme Court.