Article by: Ned Cutcher, Policy Officer, NSW Tenants’ Union

Until a couple of years ago, renting laws in New South Wales did a pretty poor job of giving share house residents straight answers about their rights. The law only properly recognised rental relationships between a single landlord and tenant. However, there is a spectrum of rental relationships, and share housing offers up some of the most complicated types.

In the past, a problem between housemates could be extremely difficult to resolve, especially if it boiled down to a dispute over legal rights and duties. The Residential Tenancies Act 2010 has gone some way towards changing that – some answers are clearer than others. But you have to know how it works in order to make the most of it.

The first thing to consider is where your rights and duties actually come from. In a rented share house, your legal status will depend upon a number of possibilities:

  • If you are named on the residential tenancy agreement along with one or more others, then you are a co-tenant. Your rights are equal and several, so you could be held liable for the actions of your housemates.
  • If you are named on the residential tenancy agreement but your housemates are not, then you are a head-tenant. You’ve transferred part of your right to occupy the premises to your housemates and you act as their landlord. Your obligations to your housemates will depend on the nature of your agreements with them.
  • If you are not named on the residential tenancy agreement, but you have a written agreement with the head-tenant, then you might be a sub-tenant with rights and obligations covered by the Residential Tenancies Act. But if your agreement is a ‘lodging agreement’ you’ll be covered by the common law or (less likely) the Boarding Houses Act.
  • If you are not named on the residential tenancy agreement and have no written agreement with the head-tenant, then you could be a sub-tenant with no rights under the Act, or a boarder or lodger. Your share house could be a ‘registrable boarding house’ subject to the Boarding Houses Act 2012, and you could have an ‘occupancy agreement’ under that law. A number of criteria must be met for that to be true – it’s more likely that your rights will derive from the common law of lodging, which is not ideal. (If your head tenant resides elsewhere, you may have rights under the Residential Tenancies Act).

The Tenants’ Union argues that all renters who are not covered by the Residential Tenancies Act should have an automatic right to the kind of occupancy agreements the Boarding Houses Act provides. This would be very easy for the NSW Government to achieve. It would ensure all renters in NSW have basic occupancy rights and access to affordable, independent dispute resolution.

A final word of caution – if you live in a share house that has seen a number of occupants coming and going over time, you may not know who is named on the residential tenancy agreement. It’s possible that you are a sub-tenant without rights under the Act, and your head-tenant is the unknown person who signed the original agreement. Your relationship to the landlord, and your right to occupy the premises, may be tenuous and in need of some care. But other things are possible, too. It’s a good idea for your household to get to the bottom of this, to make sure everyone knows where they stand. Speak to your local Tenants Advice and Advocacy Service to find out what to do.

Talk to your housemates about getting your house in order:

  • Decide whether you want to be co-tenants, or head-tenant/sub-tenant.
  • Get more info at tenants.org.au/factsheet-15-share-housing
  • If you are a head-tenant/sub-tenant, write up your agreement.
  • Download an example at https://www.tenants.org.au/share-housing-agreement