- The Share Housing Survival Guide -

On 31st January 2011 the new Residential Tenancies Act 2010 (NSW) (the Act) came into force.

The Act changes the law around share housing quite dramatically. We won’t be able to give a full guide on the new law until it starts to get interpreted by the Consumer, Trader & Tenancy Tribunal (the CTTT). For now, here is a brief summary of the relevant sections of the new law. You should read this summary in conjunction with the Tenants Union factsheets referred to below.

For More Information
You can also look at the factsheets on Share Housing and Transfer and Subletting at the Tenants’ Union of NSW website (as well as other information about the new Act).

You can find the Act in full at the Austlii website or the NSW Legislation website. The Regulations can be viewed at Austlii or NSW Legislation. There is also information at the NSW Office of Fair Trading website.

For advice on your specific situation you can call a Tenants’ Advice & Advocacy Service. Find your local service at the Tenants’ Union of NSW website. Landlords (and tenants) can also call Renting Services (NSW Office of Fair Trading) on 13 32 20 or LawAccess NSW on 1300 888 529.

Head-tenant
Someone on the lease who lives with someone that isn’t on the lease. The head-tenant usually has the same rights and responsibilities as a landlord towards their sub-tenant, boarder or lodger.

Sub-tenant
Someone who rents with a head-tenant but is not on the lease. Under the new Act, to be a sub-tenant you must have a written Residential Tenancy Agreement with that tenant.

Boarders & Lodgers
Someone who does not have a right of exclusive possession (against the landlord or head-tenant) like a tenant does. With the new Act, many people who would have been considered sub-tenants are now boarders or lodgers. The term occupier is used interchangeably with boarder and lodger in this guide.

Co-tenants

Co-tenants can now take each other to the Tenancy Division of the CTTT to have their tenancy ended and over bond disputes.

After the fixed term has expired, a co-tenant may give the landlord and the other co-tenants 21 days written notice to end their tenancy – s 101.

A co-tenant can also apply to the CTTT to have their own tenancy, their co-tenant’s tenancy, or the whole tenancy ended - s 102(1). The Tribunal must believe this is appropriate in the ‘special circumstances of the case’ - s 102(2). This can also happen during a fixed term of the agreement but the co-tenant may have to pay a break fee - s 102(4), s 107.

After a co-tenant moves out, the remaining co-tenants must refund their share of the bond within 14 days of a request – s 174(2). They may deduct any money owing for rent or reasonable costs related to the premises – s174(3). If the co-tenant left due to final exclusion orders of an AVO then the remaining co-tenants do not need to make the payment within the 14 days – s174(4).

A former co-tenant can apply to the CTTT to determine how the bond should be split, even if it has already been paid out by the Rental Bond Board - s 175.

Head-tenants & sub-tenants

Under the Definitions in the Act a ‘tenant’ includes a sub-tenant of a head-tenant and a ‘landlord’ includes a head-tenant of a sub-tenant - s 3. This means that a head-tenant has all the same rights and responsibilities as a landlord towards their sub-tenant. For example, a head-tenant must give a sub-tenant 90 days written notice to move out (once the fixed term has ended) – s 85. Similarly, a sub-tenant has the same rights and responsibilities as a tenant towards their head-tenant. See the ‘More Information’ section above for general rights and responsibilities of tenants.

A tenant may transfer the tenancy under a residential tenancy agreement to another person or sub-let the premises to another person, if the landlord gives written consent to the transfer or sub-letting – s 74(1). The landlord can only charge reasonable expenses for giving consent – s 74(2). The landlord can refuse to allow the sub-letting in certain circumstances – see s 75 and also the Tenants’ Union factsheet on transfer and sub-letting.

An occupant may be recognised as a tenant if the head-tenant has died or left the premises – s 77, or if the head-tenant has left the premises due to an AVO (Apprehended Violence Order) which excludes them from the premises – s 79.

For a sample tenancy agreement between tenants see the Tenants’ Union factsheet on transfer and subletting.

If you are not a sub-tenant then you are an occupant who is not covered under the Act – s 8(1)(c). See boarders and lodgers below.

Occupants, boarders and lodgers are not covered by the Act – s 8(1)(c) or the Tenancy Division of the CTTT. Section 8(1)(c) states that the Act does not apply to ‘an agreement under which a person boards or lodges with another person.’ This means that boarders and lodgers do not have the same protection as tenants if they have a dispute with their landlord.

As boarders and lodgers are not covered by the Act, it is much better for people not on the lease to make sure they are recognised as a co-tenant or sub-tenant. It also provides more protection for a head-tenant to live with a sub-tenant or a co-tenant than an occupant as an occupant can leave without giving a set amount of notice, and the CTTT will not be able to hear a bond dispute (you would need to go to the Local Court to chase any debts).

Redfern Legal Centre is currently working on a Legal Kit for Boarders & Lodgers. See also the factsheet on boarders and lodgers at the Tenants’ Union website.