Housing and Tenancy

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Is your client a tenant, resident or licensee?

It is important to understand whether your client is a tenant, resident or licensee. Tenants have different rights from residents and are dealt with under different sections of the Act. Further – if your client is neither a tenant nor a resident, it is likely that the Act will not apply and your client will have none of the rights specified in the Act.

The Act is assumed to apply until the contrary is proven. The person or party who asserts the Act does not apply bears the onus of proving it does not apply (s 507)

Tip - Is your client a tenant, a resident, or neither?

  • Tenants have different rights from residents and different sections of the Act apply
  • If your client is neither a tenant nor a resident, it is likely that the Act will not apply and your client will have none of the rights specified in the Act

Is your client a tenant?

The Act does not provide much guidance on identifying who is a tenant. Generally speaking a tenancy exists where a person pays rent to the landlord for exclusive possession of residential premises (such as a house or flat). Exclusive possession refers to the ability to exclude others, including the landlord. This situation can be compared with rooming houses where residents may share a house with other residents and the rooming house owner ('RHO').

A person may still be a 'tenant' where the landlord calls your client something else, such as a licensee. It is necessary to look at the nature / substance of the relationship.

Exclusions: Some groups of people are specifically excluded from the operation of the Act and this may depend on the type of premises involved. Hotels and motels (s 20), farming premises (s 11) and educational institutions (s 21) are all examples of premises that may not be covered by the Act. See sections 5 - 15 of the Act.


Section 3 defines a tenant as a person to whom premises are let under a tenancy agreement

notwithstanding provisions in the legislation for the landlord to enter the premises.

Is your client a rooming house resident?

The Act refers to people in rooming houses (and caravan parks) as 'residents'. A rooming house resident is defined as a person who occupies a room in a rooming house as his or her main residence(s 3).

The Act defines a rooming house as a 'building in which there is one or more rooms available for occupancy on payment of rent - (a) in which the total number of people who may occupy those rooms is not less than 4.'

The Act provides that residents can enter tenancy agreements and that in such circumstances 'the rooming house provisions do not apply to the occupation of that room by that resident' (s 94). Despite this, section 94 also provides an RMO and resident may enter an agreement that is not a tenancy agreement. Accordingly, careful attention should be paid to agreements in these circumstances.

Checklist – is your client a tenant? Does the Act apply?

  1. Is the person named as tenant on a written lease?
  2. Does the person pay rent?
  3. Can the person exclude others from his premises (exclusive possession)?
  4. Share house - Does the person share the premises with others? Is there a lease? Who is listed on the lease?
  5. Rented room - how many rooms are for rent? Is there only one room? Are you a boarder? - If so you may not be covered by the Act.
  6. Rented room - Are there other rooms for rent? Is the total number of people who may occupy the other rooms (including couples) at least 4 people?

Is your client a licensee?

It is important to determine whether your client is a licensee because this will determine whether he/she is protected by the Act. Licensees are not provided with rights under the Act.

In considering whether a license has been created it is necessary to look at the facts and intention of the parties and ask whether it was intended that the client pay rent for exclusive possession of the premises. 

Generally exclusive possession is found not to exist where a party rents a room only. There is also a presumption that the agreement is a license if the licensor also lives at the premises. These presumptions may be overturned by evidence that the client is living in a rooming house or of a sublease arrangement where a head tenant agrees to provide a subtenant with exclusive possession of premises (ie lock on doors).

When considering whether the client is a licensee it is also necessary to consider whether the client comes within the definition of a rooming house resident as there can be some overlap. 

 

Tip - is your client a licensee?

 

In considering whether the client may be a licensee it is important to obtain instructions about the following 

1) Does the client pay rent for exclusive possession? (Is there a lock on the door, can the client exclude all others? Is the room self contained in some way? Ie is there a kitchen/bathroom?)

2) Does the client live with the owner of the premises?

3) Is it possible to classify the premises as a rooming house?

4) Alternatively, is it possible to classify the client as a sub tenant? (Note that section 81 of the Act provides a tenant must not assign or sublet premises without the landlord's written consent. In the absence of consent, the sublease/assignment will be invalid.)