Under the COVID-19 Omnibus (Emergency Measures) Bill 2020 passed by the Victorian Parliament on 23 April, clause 13 defines what an eligible lease is for which tenants can seek relief from their landlord.
However, under subclause 3 of clause 13, the bill states that a retail lease or non-retail commercial lease or licence will not be eligible for rent relief if:
“An entity has a prescribed method of control or influence, through the holding of a prescribed interest, right or power, in relation to acts or decisions relating to the ownership, management or affairs of a tenant under the retail lease or a non-retail commercial lease or licence that is a body corporate.”
Speaking to SMSF Adviser, DBA Lawyers special counsel Daniel Butler said SMSFs in Victoria may not be protected by the COVID-19 tenant protections.
As a result, he said landlords will instead have to rely on national fair trading laws for protections.
“I understand why ‘related parties’ would be carved out as an SMSF landlord having some influence or control over the tenant’s business — therefore, there is no need to protect the tenant from the landlord under the legislation. Thus, the SMSF and related party are left to negotiate together without the protection offered by the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic),” Mr Butler said.
“This raises some interesting issues on how SMSFs with related-party tenants (including where the SMSF owns the property via a unit trust) manages any rent adjustment under COVID-19 and what evidence and basis it does so.
“I’ve already noticed a few SMSF suppliers suggest that trustee resolutions are the best way to vary leases and they are touting their products for cheap with questionable legal basis.”
Earlier this month, the Victorian government announced its plan for land tax relief for landlords as part of a $500 million package to reform residential and commercial tenancy laws.
So, it’s available to SMSFs (subject to negotiations between tenants and landlords) but not formalized under the legislation? Is that what the article trying to say?
For most landlords with a residential property held under a smsf arrangement the relief announced by the government is minimal… Maybe not the case for commercial properties. For landlords in Victoria the government is providing a 25% discount on Land tax and a delay in payment until March 2021 if you come to a revised agreement with your tenant who is under financial stress.. This relief for most landlords amounts to a minimal amount; it’s basically one week’s rent… I couldn’t be bothered going through hoops to claim it and will just deal with the lower revenue if my tenant cant afford to pay… But I can understand this might not be the case if you have a sizeable Land tax bill or impact…