How Does Undue Hardship in Special Circumstances Affect Tenants’ Rights and Landlord Obligations?

The recent case of Tawadros v Grubisic (2020), heard by the NSW Civil and Administrative Tribunal (NCAT), illustrates the obligations of landlords and rights of tenants in special circumstances such as the COVID-19 pandemic.

Key facts

The husband, wife and two children cohabited with the husband’s elderly mother who owned the house. The husband and wife’s own house was rented out under a 52-week agreement which was due to end in August 2020. Because of the pandemic, the couple became concerned about the risk of infection to the husband’s mother. They applied to the Tribunal for early termination.

In NSW, the legislation allows a landlord to terminate a lease if, in special circumstances, they would otherwise suffer undue hardship. The tenants opposed because of the severe disruption it would cause to their family of five.

The Tribunal’s decision

The Tribunal dismissed the application for early termination ruling in favour of the tenant. While special circumstances were evident, the Tribunal was not satisfied the landlords would suffer undue hardship if the agreement was not terminated.

The landlord’s situation was far from unique. On the other hand, terminating the lease would cause considerable difficulties for the tenant’s family. Finding replacement accommodation, particularly with viewing restrictions in place, would be problematic.

The case illustrates an aspect of the rights of tenants and obligations during the COVID pandemic.

More generally, the temporary changes to NSW’s tenancy laws in response to COVID-19 have been extended to 26^th March 2021.

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