Shelter - Hot Topics 57 - Legal Information Access Centre - NSW ...

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Boarders andlodgersBoarders and lodgers are like tenants in thatthey contract with a landlord for the right tooccupy premises, but their legal position is verydifferent. at common law, a lodger has a legalright to occupy premises, but it is not a right toexclusive possession and the landlord retainscontrol of the premises. typically this means thatthe landlord or a caretaker is physically presentat the premises, and sets rules of conduct forpersons on the premises. it also may mean thatthe landlord or caretaker provides services tothe lodger, like cleaning and linen. a boarder isa lodger who receives meals with their right tooccupy the premises.In New South Wales, boarders, lodgers and some otherrenters are not covered by any residential tenancieslegislation. People who rent rooms in hotels and motelsor in educational institutions are not covered by anylegislation that relates specifically to their housingrights.Boarders and lodgers include some of the most vulnerablepersons in the community.liceNceS aT cOmmON laWAt common law, a lodger’s right to occupy premises iscalled a licence. In contrast to a tenant’s lease, a licenceis a personal right and does not entail a legal interest inthe land, and is not subject to many of the rules andprotections that have applied traditionally to leases.The terms contained in a licence are limited to whatthe lodger and landlord bargain for – which means, inpractice, that the terms are determined by the landlord.The rights and obligations of boarders and lodgers areset out in their licences. Where the licence is not inwriting, an oral licence may be implied. Where thereis uncertainty as to the terms of a licence, the law willregard the licence as having such terms as the partiesreasonably intended, and such terms as are necessary tomake the licence effective. In most cases boarders andlodgers are also required to observe ‘house rules’ set bythe landlord.Boarders and lodgers are often required to pay bondsand other charges, such as ‘key money’, at the start oftheir agreements. There is no legislative requirement thatbonds be lodged, or receipts given.The periods of notice required for rent increases andtermination are determined by the licence. If the licencedoes not set out the periods of notice, the law generallyregards the required period as being the same as theperiod for which rent is paid (that is, if the rent ispaid fortnightly, the landlord should give two weeks’notice of any rent increases, and two weeks’ notice oftermination).A boarder or lodger who stays past the date in a noticeof termination may be evicted by the landlord. Thelandlord does not need a court order or warrant, and maycarry out the eviction themselves or with the assistanceof the police.Boarders and lodgers who are in dispute with theirlandlord may be able to apply to the Consumer, Traderand Tenancy Tribunal, but not under the ResidentialTenancies Act 1987. Instead, the Consumer Claims Act1993 may provide remedies through the Tribunal, butonly if the landlord is ‘in business.’ This requirementmeans that some landlords – particular those who letrooms in their own homes – are not subject to theConsumer Claims Act 1993. Note that the ConsumerClaims Act 1993 does not prescribe any particular rightsin relation to housing, nor any protections or processesin relation to evictions.liceNSed bOardiNg HOuSeSUnder the Youth and Community Services Act 1973,premises that provide accommodation to two or morepeople with disabilities and who need supervision orsocial habilitation are required tobe licensed by the Department HOT Tipof Ageing, Disability and Homehabilitation is theCare (DADHC).gaining of skills thatpeople have notpreviously had, ratherthan the regaining ofskills lost (rehabilitation).Boarders and lodgers 19
Premises licensed by DADHC are often called licensedboarding houses or licensed residential centres (‘LRCs’).These licences include conditions relating to the standardof accommodation and care provided by the LRC,and DADHC is responsible for monitoring LRCs andensuring that they comply with licence conditions.Note that these licences, which are between DADHCand boarding house operators, are different and separatefrom the licences between boarding house operators andindividual boarders and lodgers.Almost all LRCs are operated on a for-profit basis byprivate landlords, and charge rents equivalent to 70-100per cent of a resident’s income. There are currently 55LRCs in New South Wales, with a total capacity of 900beds; in 1993, there were 179 LRCs providing 3900beds. 24 There are, of course, many more boarding housesproviding accommodation to two or more people withdisabilities than the 55 currently licensed by DADHC.laW refOrmCommunity groups have long argued for the need toreform the law relating to boarders and lodgers. Attimes governments from both sides of politics havealso acknowledged the need for law reform. Despitenumerous reviews, promises and Bills, boarders andlodgers still have no legislated rights.Of the Australian states and territories, only NewSouth Wales and Western Australian have no legislationcovering boarders and lodgers. The other states andterritories each make very different provisions forboarders and lodgers. For example, Victoria’s ResidentialTenancies Act 1997 (Vic) makes specific provisions forresidents of ‘rooming houses’, including periods of noticeand grounds for termination, but that Act excludes‘residential care services’, including service agenciesfunded under the Victorian Disability Services Act 1991.In Queensland, the Residential Services (Accommodation)Act 2002 (Qld) applies narrowly to residential servicesunder the Residential Services (Accreditation) Act 2002(Qld), which applies only to services that accommodatefour or more residents.To generalise, across Australia the predominant modelof legislation relating to boarders and lodgers providesa prescribed regime of rights and responsibilities, whichapplies to a prescribed class of residents, premises oragreements.A different approach to law reform has been taken bythe Australian Capital Territory. In 2004, amendmentsto the Residential Tenancies Act 1997 (ACT) madeprovisions in relation to ‘occupancy agreements.’ Theseprovisions are intended to apply not to a narrowlyprescribed class, but to all residential renters who arenot tenants under the Act. Also, instead of prescribinga regime of specific rights and responsibilities, the Actsets out a list of ‘occupancy principles’, which are lessprescriptive than the provisions relating to residentialtenancy agreements. The Act does provide for standardoccupancy terms to be made by Regulation, which mayapply to specific types of occupancy agreement and alsogives the ACT Residential Tenancies Tribunal the powerto deal with disputes.image u navailableResident, Sam Chapman takes a look at one of the more run down rooms at Western Lodge, a supported residentialservice in Melbourne.Angela Wylie, The Age (Melbourne), 2006.24. DADHC: monitoring standards in boarding houses, NSW Ombudsman, 2006; http://www.ombo.nsw.gov.au/publication/specialreport.asp20HOT TOPICS 57 > Shelter
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Shelter - Hot Topics 57 - Legal Information Access Centre - NSW ...

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