Life may be getting back to ‘COVID-normal’, but commercial property landlords are still required to provide financial relief for tenants. MinterEllison gives us an update on mandatory commercial leasing codes of conduct.

Following the National Cabinet decision on 7 April to introduce a mandatory code of conduct for commercial leases, each government has implemented the national code principles under its own legislation or regulations.

As a result, commercial landlords must navigate a wide range of legislative and regulatory instruments and requirements to meet their obligations under the code.

First launched in May this year, by MinterEllison’s Managing Partner of Infrastructure, Construction and Property, Virginia Briggs, the COVID-19 National Cabinet Mandatory Code of Conduct Compendium has been progressively updated to reflect the rapidly evolving regulatory landscape across different state and territory jurisdictions.

“For landlords and tenants, who either have operations in multiple states or who negotiate agreements with counterparties who lease across multiple jurisdictions, it has been particularly challenging,” says MinterEllison real estate partner Jakob Paartalu.

“The new extension regimes in various jurisdictions has added yet another layer of complexity,” Paartalu explains.

With the commercial leasing regimes originally planned to expire in September or October, most governments have extended their code regimes until the end of December. The exception is Western Australia, which has kept its scheme in force until the end of March 2021.

The Northern Territory is the only jurisdiction with no code requirements in place, reflecting its unique position as the first jurisdiction to fully reopen its economy some months ahead of the rest of the country.

“The Compendium now captures two distinct periods of time: the ‘initial period’ and ‘extended period’,” Paartalu says.

“It continues to cover the latest jurisdictional approach for landlords and tenants navigating land tax, and also draws out the importance of Foreign Investment Review Board considerations.”

The Property Council has consistently argued for the Code provisions to be wound up, given that business and economic activity in most parts of the country is now returning to pre-COVID levels.

Download the COVID-19 National Cabinet Mandatory Code of Conduct Compendium.

Code of Conduct update

In November we will begin transitioning organisations who have pre-registered, to a full registration for the Retirement Living Code of Conduct.

Pre-registered organisations will have the first opportunity to formally become a Code of Conduct signatory, before we open registrations to the entire retirement living industry.

Full registration requires you to certify the Code compliance status of each village and to pay your annual Code subscription fee. We have worked to make this process as simple as possible, and to assist you can undertake a pre-assessment using our self-certification checklist.

From 1 January 2020, residents and the public will be encouraged to check if their current or prospective village is signed up to the Code.

A reminder that the annual Code of Conduct subscription fee is:

Property Council and LASA member organisations
$200 per village + $2. per independent living unit/apartment owned (+ GST)

All other organisations
$0 per village + $6.25 per independent living unit/apartment owned (+ GST)

Application fee

A one-off application fee of $100 (for member) and $2 (non-member) villages will also apply. This fee will be waived for all villages registering before 31 December 2019.

Code benefits

All signatories to the Retirement Living Code of Conduct will be able to access a range of collateral to promote their Code compliance, including individual community certificates and other marketing material, which you’ll be invited to use for the benefit of your current and prospective residents.

Your organisation’s communities will also be listed on the Property Council’s directory on the homepage of our consumer website, www.awisemove.com.au

Code administration and review panel

In coming weeks, we’ll be recruiting a dedicated Code of Conduct administrator to answer queries from signatories, potential signatories, residents and the general public about the Code.

We will also announce the Independent Chair of the Code Review Panel. 

Nominations for Code Review Panel – Operator Representative

Nominations are now open for an Operator Representative, who has experience in the operation of retirement communities, to join the Code Review Panel.

In accordance with the Code, the Code Review Panel undertakes independent oversight, monitoring and review of the Code, its content and matters referred to it by the Code Administrator.

The Panel will operate according to an agreed Terms of Reference and comprise at least three members who are not signatories to the Code. The Panel will:

• Meet regularly and must have relevant experience in dispute resolution
• Review amendments to the Code proposed by the Code Administrator
• Ensure that the Code is regularly reviewed according to the Panel Terms of Reference
• Hear appeals against sanctions imposed by the Code Administrator
• Regularly review the Complaints Register
• Annually review the Code Register, and monitor signatory compliance
• Oversee the Code Administrator’s functions in managing Code Compliance and reporting.

If you are interested in nominating to be the Operator Representative to the Code Review Panel, please email [email protected] for an information pack. You are welcome to forward this email to people in your network who may be interested in nominating.

Nominations close at midday (AEDT) on Monday 18 November 2019.