New Leases – NSW South Australia  and Victoria
The legislation implementing the Code doesn’t apply to leases entered into after 24 April, 2020, 30 March or 29 March (excluding in New South Wales any renewals after then). I expect that the practice will be to negotiated leases with a partial rent holiday at the start and then a step up to the full fixed rent the day after 24 April, 2020, 30 March or 29 March . You have to draft such clauses very carefully.

New Leases – Other States
Please wait for updates for advice here.

Guarantors and multiple Tenants 
We have included guarantors because the Law always tries to protect guarantors. If you agree to do delay payments with the Tenant then the Landlord might argue that their position has been made worse by this. It is a common situation where the Courts will let a guarantor off the hook. Our wording protects you, as much as we can in a general document, from this so long as you name all of them and they all sign.

Similar laws apply where two or more people have a contract or owe a debt and you choose to let some of them off and not others. That would apply if you only name some of the Tenants or accept that some of them won't sign.

Rent reviews
If rent is reviewed by a  percentage, fixed dollar increase or C.P.I. then it is usually based on the rent that applied prior to the review date. And that continues on throughout the lease until you reach a fair market rent review.

For leases where the Code does not apply we try and maintain that any rent reviews should be based on 100% of the rent that should have been paid during your voluntary concession. I cannot change the method of any fair market rent review without reading the Lease (which is not part of this service) or it your usual commercial leases law has rules that set out what a fair market rent review means.

If the Code does apply than there is a freeze on rent increases (except for retail leases based on turnover rent) for the COVID-19 period and for a reasonable subsequent recovery period. I have included an attempt to regain the status quo after this using the same method. It could be argued whether or not this is within the spirit of the Code or is legal.

What are you getting in return for this reduction
Aside from the commercial practicality of keeping your Tenant. You could ask that in return for this concession that the Tenant agrees to change rent reviews - perhaps to fixed amounts, fixed percentage changes or even C.P.I. based. Whatever you think is safer than what you have. You could also ask for more security - another guarantee (you might only have a guarantee from the Director husband when the house is in the name of the wife), or bank guarantee. Or extend the lease term. Or insist that they exercise any options to extend now. Or take the reduced rent for the next 6 months up front. We have other online fixed fee services for these changes to a lease - email andrewr@minotaurlaw.com.au with what you need.

Informal assignments by Tenants 
Don't use this Agreement if there has been a change in the Tenants that has not been legally documented. It is important that you see a lawyer as soon as possible. It may be that one set of Tenants is wealthier than the other, and you may have the opportunity to choose between them. It is also possible that the original tenant and  the new Tenant both owe you the rent. You would not want to unwittingly interfere with that opportunity either.

For the same reason, see a lawyer before agreeing to any new assignment. subletting or surrender of a lease by a head Tenant.

Banks and finance
If you have a mortgage or other security with a bank then it is likely to include provisions that you can't lease your premises or change the terms of a lease without the bank's consent. If they gave written consent to the original lease, then that is unlikely to allow you to change the terms from what they have agreed to. My legal advice is that you should get the bank's consent. This may not be at all practical though during the COVID-19 event.

Subleases
You should check whether you need approval from the owner or head Tenant before signing a Rent Concession Agreement. This is very much like the position with Banks referred to above.

Base rent and turnover
This Agreement only refers to base rent. You may have turnover rent or something similar. I have assumed that this is already fluctuating as COVID-19 impacts the business. Or, that you have factored this into your negotiations over base rent. But, if the Tenant is payiing turnover rent based on how the business was travelling in 2019 then you might need to see a solicitor to draw something special up for that. (Or, if you have a lot of them then I will tailor this service for you).

Insurance
If the Tenant is struggling then they may not keep their insurance up to date. I suggest that you check it. Better yet, make sure that your own insurance will cover you in case the Tenant doesn't keep up the insurance, breaches the policy (by not telling the insurer when the premises are unoccupied) or has not been honest with the insurer.

You should check that having an Agreement such as this will not affect any loss of rent insurance that you might have.

Surrender of premises or end of lease
See a lawyer before accepting that the Tenant has ended his lease or before you move back into the premises yourself.

Security
Check that the security that was promised under the lease is in fact in place. It would be a great time to hold a bank guarantee - or personal guarantee. There is a heightened risk of Tenants entering into liquidation. Check that you have registered under PPSR laws any security or Landlord's plant and equipment that is in the Leased Premises.

Surrender or end of lease
This agreement is not suitable for situations where the Tenant is giving up his lease. If a Tenant leaves you do not have to agree to this. Sometimes you might be better off holding him to th e lease. That is a question to discuss with a lawyer. If you have agreed to the end of the less then I recommend that the terms of this should be documented.

Business & commercial premises - Registered leases
This document is only suitable for common business or commercial premises (shops, offices, factories, warehouses etc.). It is not to be used for premises that are covered by the residential tenancy laws.
It is common practice in some States to register these leases - and the opposite in other States. If you have a registered lease you will need to see your lawyer to register any change to your lease.

Trading hours and closing the business
I have not mentioned this at all. If the Code applies then you are not allowed to enforce this or impose any penalty on the Tenant if they do this due to COVID-19. I don't need to say that, that is the law. If the Code does not apply then this restriction does not apply.

Consumer protection laws
These all still apply. Keep records of your discussions and correspondence in case you need to prove that the Tenant was forced into signing the Agreement. We have not included a provision that the concession is only available while the Tenant is not in default of this agreement - it would probably be viewed as an unlawful penalty and do more harm than good.

Extension of Lease
The Code says that a Tenant should (not must) be provided with an opportunity to extend their lease for an equivalent period to the concession period. It is too hard to see that far ahead as many things need to be taking into consideration if this is to happen. I have not included a right for this. Instead, I have included provision for good faith negotiations and that if the lease is forced on the Landlord that it will at least include the usual provisions of an extension (such as rent reviews and a further guarantee or other security).

Copyright Minotaur Law

This service is not the same as seeing a Lawyer. This is a limited unbundled legal service.  I will use an automated process to prepare my standard COVID-19 Rent Concession Agreement for you using the information provided by you. I will not review this. I  do not read the lease involved. It is up to you to check that the Agreement matches the wording in the Lease and the agreement between the you and the Tenants and to print it and get it signed. This service does not include making any changes to a registered lease.