Land Tax Relief for Landlords – COVID-19

Along with the proposed legislation to implement the National Code of Conduct (Leasing – COVID‑19) (the Code), the Queensland Government is introducing legislation to implement Land Tax relief, to the tune of more than $400 million, to landlords whose rent receipts are being affected by the COVID-19 pandemic.

Eligible landlords can apply for up to three months’ waiver of Land Tax for the FY19/20 and a further three months deferral of Land Tax for the FY 20/21. Additionally, foreign landlords will receive a waiver of the 2% Land Tax foreign surcharge for the FY 19/20. These waivers and deferrals will only apply to each property that meets the eligibility criteria, rather than a blanket application to all of the landlord’s taxable properties.

Eligibility

Landlords are eligible to apply for these waivers and deferrals if either of the following circumstances apply:

1. The landlord leases all or part of a property to one or more tenants and all of the following apply:

• the ability of at least one tenant to pay normal rent is affected by the COVID-19 pandemic;
• the landlord will provide rent relief to the affected tenant(s) of an amount at least commensurate with the land tax relief; and
• the landlord) will comply with the ‘Leasing Principles’ whether the relevant leases are regulated or not.

Or

2. All or part of a property is currently available for lease and all of the following apply:

• due to the pandemic the landlord’s ability to secure a tenant has been affected;
• the landlord requires relief to meet their financial obligations; and
• the landlord will comply with the ‘Leasing Principles’ whether the proposed lease is regulated[1] or not.

Leasing Principles

While these principles largely encapsulate the terms of the Code, there are a few additional principles that appear to only apply to residential leases:

• A tenant cannot be evicted for non-compliance with their lease, including non-payment of rent, for a period of six months from 29 March 2020, other than for an approved ground;
• Costs to break a fixed term lease are capped at one week’s rent, if the tenant needs to break their lease due to the financial, health or personal safety impacts of COVID-19.

A landlord who receives Land Tax relief is expected to apply that relief firstly to provide rent relief to their tenants, with any remaining relief then available to be applied against their own financial obligations.

Applying for Land Tax relief

Applications for the three month waiver of Land Tax for the FY 19/20, open Tuesday 14 April 2020 and should be made by going to https://www.qld.gov.au/environment/land/tax/covid-19 by no later than 30 June 2020. The deferral for the FY 20/21, and the waiver of the foreign surcharge for the FY 19/20, will be applied automatically.

Issues

1. What does commensurate with the land tax relief mean?

• For those leases that are not regulated by the Retail Shop Leases Act 1994 (Qld), or the Residential Tenancies and Rooming Accommodation Act 2008 (Qld), and which permit the Landlord to claim Land Tax from a tenant as part of its Outgoings, most obviously the three month waiver of Land Tax for the FY 19/20 must be passed through to the tenant. Likewise, the benefit of the three month deferral for the FY20/21 must also be passed through.
• For retail and residential leases, which are, of course, exempt from being required to contribute to a Landlord’s land tax liability, it appears that, provided that the total of all rent relief offered is equal to or more than the amount of Land Tax relief granted, a Landlord will have met this requirement.
• The proposed result appears to be that, after application of Land Tax relief, at an absolute minimum, the financial position remains cost neutral to both Landlords and tenants.

2. What is an approved ground for eviction purposes?

• The statements issued by the Queensland Government give no guidance in relation to these grounds. Under the Code, if a tenant materially fails to abide by the substantive terms of their lease, they forfeit their Code protections, and it may be that the Queensland Government, in its legislation, will define approved grounds to include such a failure.
• There should also be a carve-out in relation to those tenants who were already in breach of their leases prior to implementation of both the Code (on or after 3 April 2020, depending on the Code implementation legislation), and 29 March 2020 which appears to be the ‘trigger’ date for Land Tax relief.

What now?

As noted above, the State Government must now pass legislation to implement both the Code and the Land Tax relief being offered. As always, ‘the devil is in the detail’ and one can only imagine that this will take some time, particularly as the next Parliamentary sitting date is not until 28 April 2020, and one back-bencher MP is already considering seeking amendments to streamline applications for rent relief and imposing a compliance regime on landlords.

In the meantime, we recommend that landlords apply the principles set out in the Code in negotiating with their tenants, apply for any Land Tax relief to which they are entitled, and hold on!

[1] It appears that regulation refers to those leases to which the Retail Shop Leases Act 1994 (Qld) or the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) apply.