Well, 30 September 2021 is the last date for filing requests for rent relief that apply to the period commencing 28 July 2021 and that date is approaching fast.
Lots of people have been asking whether they can include their figures for the month ending 30 September 2021 in this request. I think the answer is yes, but that it is risky to do so for the following reasons:
· if you want to claim rent relief from 28 July 2021 (and why wouldn’t you?) your request, supporting documents and statutory declaration need to be in by 30 September 2021 (see reg 28). So, if you want to claim rent relief for the month ending 30 September 2021, then the request will need to include your accounts for that day and be in that evening;
· so far as I can tell, a legal day ends at midnight, so you should have some time after close of trade to complete the documents - but not much. This may well be impossible if you need professional input;
· you will need to get your statutory declaration witnessed that evening, too. The statutory declaration needs to affirm that the contents of the tenant’s accounts provided to the landlord are accurate, so it cannot be sworn until after the accounts are prepared. It may be (very) difficult to find someone to witness your statutory declaration in time. It’s important to note that the statutory declaration must be in on 30 September 2021 and not 14 days later (see reg 28);
· you will also need to ensure that you get your request to your landlord on time. You will need to effect service under reg 67. It is important to note that you cannot assume that service by email will be effective. Regulation 67 allows service by email in accordance with the Electronic Transactions (Victoria) Act 2000 (Vic). However:
o this generally requires the landlord’s consent (see sub-s 8(1)(b) of that Act) and whether that consent has been provided will be determined on a case-by-case basis; and
o depending on your personal circumstances, there may be difficulties determining when the email is deemed to have been received (see s 13A of that Act);
· VCAT has not heard any cases about the new CTRS Regulations that I am aware of, but it has heard quite a few under the old 2020/21 Regulations. Most of these cases have been about whether requests for rent relief comply with the old CTRS Regulations and VCAT has been quite strict about compliance (for example, see Zeini v Inner Metropolis Holdings Pty Ltd (Building and Property) [2021] VCAT 243). Consequently, there is a real risk that a defect in a request for rent relief will render the request void and of no effect; and
· if a valid request is not made on or before 30 September 2021, then the tenant is only entitled to rent relief for the period after a valid request is made and not for the period from 28 July 2021 (see reg 28), so making an invalid or late request could be an expensive mistake.
Also, the mandatory re-assessment applies from 31 October 2021 and take account of the tenant’s turnover figures that include trade up to 30 September 2021.
Consequently, while it may be possible to base your request on figures that include the month ending 30 September 2021, it is a brave tenant who elects to do so and it may well be better to rely on your turnover figures from June, July and August rather than risk making a non-compliant request or missing the deadline.
If, however, you are committed to using your September turnover figures, then it is essential that you get professional advice as soon as possible on whether your request is compliant and the steps you need to take to ensure compliance on the evening of 30 September 2021. It is important that you get advice specific to your circumstances, as the above comments are general only.
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This post originally appeared on samhopperbarrister.com
