Tenants, Boarders, Lodgers

Student Accommodation &

Legal Issues

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TENANT? BOARDER?LODGER?

RESIDENTIAL TENANCIES ACT 2010

BOARDING HOUSES ACT 2012

AUSTRALIAN CONSUMER LAWS

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Control, Dominion, Mastery:

JERICHO INDICATORS:

• Tenant: often exclusive possession, Arms length relationship,

owner lets go of some control of premises/more latitude to tenant , formal arrangement, right to written agreement, owner (servant) not normally remaining at premises.

• Lodger: historic context: popular 18th/19th Centuries: rent a room

with a household: owner retains control of the premises, lodger must abide by rules of the household - acceptance of “micro-management”, level of informality, owner (or servant) remains at premises:

• “One would expect that a lodger was subject to the ways and even the

whims of the household, and suffered as a result of significant

limitation on the liberties appropriate to an arm’s length tenant”

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TENANT v LODGER eg:

• Nuisance – eg tenant could have 30 people to party – provided he ensured they did not create a nuisance.

• Problem with neighbour: general legal avenues are available – Application of CTTT, mediation with Community Justice Centre, may be AVO, injunction etc

• Personal morality and behaviour (generally) would be tenants business

for lodger: strict Rules, limitations, controls, “Absolute discretion” , morality clauses not normally part of a tenancy agreement.

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TENANTS: If you a tenant in NSW you are covered by the Residential Tenancies Act 2010 (NSW) (RTA).

The RTA deals with most legal issues that can arise at the start of, during and at the end of a tenancy.

RTA does NOT Apply to :

boarders and lodgers

occupants of shared households who do not have written tenancy agreements. If you are moving into a share house where you are not on the lease, you need to have a written tenancy agreement with a named tenant to make you a subtenant and therefore covered by the RTA.

Certain types of accommodation: hotel, motel, premises ordinarily used for holiday purposes, any part of an education institution, hospital or nursing home, any part of a club

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MAIN FEATURES OF THE RTA

standard form of tenancy agreement

procedure if the landlord wants to increase the rent, terminate the tenancy – time frames etc

The Consumer, Trader and Tenancy Tribunal has power to resolve disputes arising from a tenancy.

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TENANTS RIGHTS UNDER THE RTA

right to: material facts disclosed before entering an agreement.

A written copy of the tenancy agreement including the condition report.

bond deposited at Renting Services.

60 days notice in writing of a rent increase.

Premises that are reasonably clean and fit for cohabitation, reasonably secure and in a state of reasonable repair.

Repairs.

Compensation for urgent repairs if you have paid for them.

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TENANCY

• RT Regs sets out standard form of agreement – all RTA needs to be the standard agreement.

• Under RTA agreement can be written or oral – can have on handshake (not share housing) NOT RECOMMENDED .

• landlords responsibile to prepare written agreement – if they refuse can get order from CTTT. If you provide a signed agreement and landlord or agent does not sign – deemed binding from the time they accept rent.

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TENANCY

• Additional terms are valid providing they are not inconsistent with the RTA.

• Following are prohibited:

Tenant must have the carpet professionally cleaned.

Tenant must take out insurance.

If the tenant breaches they must pay all outstanding rent.

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TENANCY

• Fixed term and periodic „continuing‟ agreements. Most start as fixed term and roll over into a continuing agreement.

• Under a fixed term agreement – no rent increase during the fixed term unless agreement sets out clearly amount and calculation.

• Neither party can terminate in the fixed term without grounds.

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TENANCY

• Bond – must not be more than 4 weeks rent. • Landlords must deposit with Renting Services

within 10 days of payment. Renting services will provide you with receipt. If do not receive – give them a call.

• May be asked to pay rent in advance in addition to the bond – only allowed to be 2 weeks. Not allowed to charge additional e.g. For preparation of agreements.

• Entitled to key to each lock. Each tenant entitled to a set of keys.

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TENANCY - Access

• Landlord can have access in some circumstances

• Notice requirments depending on the circumstance (Other than emegency)

• If do not comply – breach of agreement by landlord.

• Agent – act on honestly and fairly – not mislead, not engage in high pressure tactics –

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TENANCY - CTTT

• CTTT – 3 months to lodge application from time of breach.

• Cannot order payment of money or performance over $15,000 – must go to court.

• Legal impediments to occupation. • Breach by tenant – CTTT can make following

orders: Termination Compensation Specific performance

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TENANCY

• Landlord cannot respond to alleged breach by: Locking tenant out. Seizing tenant‟s goods Listing tenant on the residential tenancy

databases – only after tenancy terminated and then only for specific reasons.

Tenant should not change locks without consent of landlord.

Tenant should not make alterations to the property without the consent of the landlord.

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TENANCY:

• Do not sublet without consent of landlord – breach of agreement –

Landlord

Head tenant

Sub tenant

Share housing.

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TERMINATION

• Must issue notice.

• Must be in correct form (s223)

• Must be served correctly

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GETTING YOUR BOND BACK • If tenant/Landlord agree on bond complete the claim of

bond form together and both sign.

• If Tenant does not agree: complete the claim of bond form yourself and submit to Renting Services –

• Renting Services will notify the landlord. Landlord has 14 days to notify Renting Service to hold the money and apply to CTTT to resolve dispute.

• If landlord applies first, Tenant will need to notify Renting Services and make application to CTTT to resolve dispute.

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Exemption: RT Regulation 2010 Residential

colleges and halls of residence in educational institutions

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Residential premises used, or intended for use, principally as a residential college or hall of residence for students of an educational institution are exempted from the operation of the Act if:

(1)

(a) they are located within the institution, or

(b) they are owned by the institution, or

(c) they are provided for that use by a person or body that provides the premises under a written agreement with the institution to provide accommodation to students of the institution.

Reg 20 cont:

2) Despite subclause (1), any part of residential premises referred to in that subclause is not exempt from the operation of the Act if:

(a) the landlord and tenant agree in writing that the part of the residential premises is to be subject to the Act, or

(b) allocations for the part of the residential premises have been applied for, or provided, under the National Rental Affordability Scheme Act 2008 of the Commonwealth.

3) Subclause (2) (b) ceases to apply to a part of residential premises for which an application for allocations has been made if the application is withdrawn or is unsuccessful.

(4) In this clause: educational institution means premises used for education, being:

(a) a school, or

(b) (b) a tertiary institution that provides formal education and is constituted by or under an Act

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Note also s 8(1) c ACT –

• Act does not apply to:

(8)1C an agreement under which a person boards or lodges with another person

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JERICHO v Carillon Ave P/L (Tenancy) [2005]

NSWCTTT 514 (5 August 2005) Note: case relates to 1997 version of Residential Tenancy Act but is still relevant and

instructive as current act has maintained the exception

EXEMPTION to EDUCTIONAL INSTUTIONS Facts of Jericho: University & Independent Comp. managing accommodation - No right for V/Chancellor to intervene in internal decision making - CTTT would not define “educational Institution” exhaustively – gave this interpretation: - “An institution the primary activities of which are devoted to education, in the sense of imparting knowledge

or assisting and guiding the development of body or mind (Cheterman HCA 1923). - Imparting knowledge…is not limited to face to face “chalk to talk” lecturing or tutorials; it extends to at least

the carrying out of research and the storing of knowledge. Guiding the development of body and mind extends at least to the creation of an environment susceptible to learning, which would include, for example, attempting to facilitate the personal work of students (in the sense of, inter alia, homework, preparation of research papers and revision for exams

- The legislation assumes that educational institutions will include accommodation facilities” (Paras 65-69)

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(Jericho)

KEY QUESTION: What is the linkage between an

educational institution and its parts?

CTTT in Jericho – draw common knowledge (Para 70 – 71) • Can be spread over a number of physical sites (eg different campuses)

: Co - location or even close location not essential , may be indicative

• Can be spread over non-physical sits - On-line seminars • Must include ancillary facilities - not direct/indirect imparting

knowledge - but - essential part of the imparting of knowledge • Not formal teacher/student setting: education arises from discussion

and interaction between students • RE: University: “relevant institution consists of the

Corporate form of the university (entity whose seal is put on contracts) together with such of its servants, agents, partners, assets and instruments as are not too distantly removed from its repository of skills and knowledge) and of course , its students,

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(Jericho) FINDING:CTTT has no Jurisdiction:

Accommodation falls within Exemption

“Educational Institution” • In the course of providing accommodation, it provides a

network of supporting and regulatory mechanisms devised to facilitate student life. (Para 96)

Spectrum: A flat in which a university student

resides owned by an independent private landlord is not part of an educational institution. At the other end of the scale, student housing located on campus and directly owned by the university and directly governed by university officers clearly is. (Para 97)

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Boarding House ACT 2012 (BHA) • Relates to : boarders of registrable Boarding houses • “proprietor / resident / occupancy “ • Purpose : “Delivery of quality services to residents of

Registrable boarding houses and promotion and protection of the wellbeing of such residents”

• definition of “Registrable Boarding House”: (s9) General Boarding House: ▫ Provides beds

▫ For a fee or reward

▫ For use of 5 or more residents (not including property/manager)

• Register of boarding Houses (s12-15) - available on CTTT website – (some of the information)

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Key Aspects: Occupancy Principles:

schedule 2 • Clean, reasonable state of repair

• Reasonably secure

• Boarder must know the rules before moving in

• Penalties for breach of rules PROHIBITED

• Right to quite enjoyment

• Inspections for repairs

• Right to 4 weeks notice before occupancy fee increased

• Conditions re utility charges

• Security Deposit – must not exceed equivalent to 2 weeks occupancy fee

• Repayment of security deposit within 14 days

• Right to Information regarding Termination (how/why/notice period)

• Notice of Eviction – reasonable notice

• Resident must be given written receipts

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Other aspects

• Accommodation must be compliant with Occupancy rules

• Proprietor must ensure agreement is in writing – though this does not mean that if not in writing not enforceable –

• Council Inspections: “Initial Compliance Check (s16) & Powers of Inspection (s18)

• CTTT to resolve disputes • Guide – has been produced for Local Council –

available online about their role in BHA.

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Exception: definition

• Definition of General Boarding House does not apply to [s5(f)]:

• “A government school or registered non-government school within the meaning of the Education Act 1990 or any other premises that are used by an educational body to provide accommodation for its students”

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Are the Exemptions necessary?

- Are the expectations onerous?

- Are there practical difficulties?

Can opt in to RTA & BHA - for example why not adopt the “occupancy principles”??

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Not Tenant not a Boarder?

• CTTT will not have jurisdiction - under RTA or BHA to determine any dispute

• Gap – difficult when things go wrong – Students don‟t think about these things before – only after.

• Consumer laws or maybe general contract law

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Australian Consumer Laws - CTTT

• Consumer” and “Carrying on a Business”: onus on landlord to establish not a business.

• Reasonably fit for the purpose

• And of a quality and level of safety that is reasonable to expect for the price being paid

• Guarantee on services:

Be provided with acceptable care and skill or technical knowledge

And taking all necessary steps to avoid loss and damage

Be delivered within a reasonable time when there is no agreed end date

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EXPERIENCE FROM STUDENT LEGAL CLINIC

issues and observations regarding student

accommodation (generally)

• Vulnerability/ naivety of International Students • Our Advice at Clinic – ranged from legal to parental type advice –

not always a legal issue. • Both sides: Difficulties with Students in relation condition reports

etc - damage or lack of general cleanliness - as well as difficulties in relation to the provision of poor /unsafe living environments

• Confusing Contracts: Tenant? Boarder? Lodger? Mixing up terms/Agreements

• Access issues/Barrier‟s for International Students • Cost Barrier‟s for students generally – in relation to all forms of

legal remedies (letter writing, CTTT, Local Court (small claims/general div)

• Difficulties with private facilities – boarders / lodgers (pre Boarding House Act)

• Need to foster relationship with Council • No assistance sought or complaint re: University accommodation.

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