NSW Parliament has passed a second wave of emergency legislation to address the impacts of the COVID-19 pandemic on the real estate industry.

The COVID-19 Legislation Amendment (Emergency Measures-Miscellaneous) Bill 2020 (NSW) (COVID-19 Miscellaneous Bill) was passed on 13 May 2020 and implements further emergency measures in response to the pandemic.

Background

The NSW Legislative Assembly was recalled by the Speaker of the House to consider emergency legislation of public interest relating to the pandemic. The COVID-19 Miscellaneous Bill is one of three pieces of legislation passed by Parliament and it builds on the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (COVID-19 Act) covered in our previous article to amend key legislation, including real estate legislation.

The COVID-19 Miscellaneous Bill

The Bill expands the general regulation-making power under the:

  • Community Land Management Act 1989 (NSW) (CLMA)
  • Strata Schemes Management Act 2015 (NSW) (SSMA)
  • Retirement Villages Act 1999 (NSW) (RVA).

by allowing broad regulations to made under these Acts in response to the COVID-19 pandemic.

Regulations made under the CLMA, SSMA and RVA will remove the need for face-to-face meetings by allowing retirement village committees, owners’ corporations and associations in community schemes to operate electronically.

Regulations under the CLMA and SSMA

The Bill enables broad, yet similar, regulations to be made under the CLMA and SSMA that provide for:

  • Altered arrangements for convening an association meeting / strata meeting, including arrangements for the issue or service of notices and other documents relating to the meeting
  • Altered arrangements for the way voting may be conducted at an association meeting / strata meeting, including:
    • The circumstances in which the altered arrangements for voting may apply
    • Conditions that apply to the way the vote is exercised.
  • An alternative to affixing the seal of the association / owners’ corporation, including any requirements for witnessing or attesting to the alternative way, and
  • An extension of a time period (of no more than six months) in which an action is required to be taken under the CLMA or SSMA.
Under the CLMA:
  • An association meeting means:
    • A first annual general meeting of the association
    • An annual general meeting of the association, other than the first annual general meeting
    • A special general meeting of the association; or
    • A meeting of the executive committee of an association; and
  • A special general meeting in relation to an association, means a meeting that is not the first annual general meeting of the association or an annual general meeting of the association.

Under the SSMA, a relevant strata meeting means:

  • An annual general meeting or other general meetings of an owners’ corporation for a strata scheme, or
  • A meeting of the strata committee of an owners’ corporation.

Regulations made under the CLMA or SSMA will expire in six months, or an earlier date decided by the NSW Parliament. Further, the regulation-making power under the CLMA and SSMA provided for by the COVID-19 Miscellaneous Bill will automatically be repealed either on 13 November 2020 or on a later date prescribed by the regulations (no later than 13 May 2021).

Regulations under the RVA

The Bill extends the general-regulation making power under the RVA and allows for the Minister (by order published in the Gazette) to exempt any of the following from the provisions of the RVA or regulations:

  • A retirement village or a class of retirement villages
  • A resident of a retirement village or a class of residents
  • An operator of a retirement village or a class of operators, or
  • The Secretary.

A Ministerial exemption granted under the RVA may be subject to conditions or requirements. However, the Minister must not grant an exemption unless satisfied the exemption is necessary because compliance with the provision would be a breach of a specified order under section 7 of the Public Health Act 2010 (NSW).

A penalty of 100 penalty units (in the case of a corporation) or 50 penalty units (in any other case) may be imposed for non-compliance with conditions of Ministerial exemptions.

The Minister’s power to make certain exemptions under the RVA in line with the COVID-19 Miscellaneous Bill has a prescribed period ending either on 26 September 2020 or on a date prescribed by the regulations (no later than 26 March 2021).

The above content is commentary rather than legal advice and was prepared on the basis of applicable legislation, government programs and initiatives that were in place as of the date of publication. Given the ongoing evolution of both the COVID-19 pandemic and frequent consequential changes to the various laws and programs within all Australian states and territories, readers should seek legal advice on the current situation as applicable to their specific circumstances before taking any action in relation to the above.