This guide covers landlords (or head-tenants) and tenants (or sub-tenants) in a Residential Tenancy. This applies to the majority of share accommodation and residential property rental situations. To confirm it covers your situation visit What is my share accommodation situation?
Under a residential tenancy agreement, the tenant has a number of legal rights. These rights usually require the landlord to provide the rented premises to the tenant in a good condition or to refrain from actions that may interrupt the tenant’s ability to use the rented premises. If the landlord breaches any of their obligations by infringing on the rights of the tenant, then the landlord can be liable to compensate the tenant.
Legal right to occupy rented premises
Throughout the tenancy, the landlord must take all reasonable steps to ensure that the tenant is legally allowed to occupy the rented premises as a residence. Legal impediments to using a rented premises as a residence commonly include environmental planning restrictions, health and safety regulations, or government orders. This means that the landlord should make enquiries before renting a premises to determine whether it can be used as a residence.
Tenants are not allowed to sub-let all or part of a residence without the permission of the landlord. If a tenant does sub-let without the landlord’s permission, this is a breach of the agreement between the tenant and landlord, and the landlord will be entitled to compensation from the tenant. The sub-tenant is still allowed to occupy the premises under the sub-tenancy agreement, even if the landlord has not given permission.
Right to vacant possession at beginning of tenancy
At the beginning of the tenancy, the tenant has the right to vacant possession of the parts of the rented premises which they have exclusive possession of under the agreement. Vacant possession means that no one apart from the tenant, including the landlord, is occupying or has the right to occupy the rented premises. When the landlord intends to also use parts of the premises, it is therefore very important that the tenancy agreement states which parts of the property are exclusively for use by the tenant and which parts are for shared use.
In shared accommodation, vacant possession is particularly important. If a person is renting a room in a shared house, they will have exclusive possession over their room, and shared use of the other facilities and rooms of the house, such as the bathroom or kitchen. In this situation, the tenant is therefore entitled to vacant possession of their room. The tenancy agreement should clearly state which parts of the property are for exclusive use by the tenant, and which parts are for shared use.
Right to quiet enjoyment of the rented premises
The tenant has the right to quiet enjoyment of the rented premises without interference or interruption by the landlord. This means that the landlord is under an obligation not to do anything or to allow anything to happen which may interfere with the reasonable peace, comfort or privacy of the tenant during the tenancy.
There is no set list of things that are interferences with quiet enjoyment. However, there are a number of common examples where the landlord is infringing on the rights of the tenant:
In share accommodation where the landlord lives in the same property, respecting the tenant’s right to quiet enjoyment is particularly important. The landlord should understand that the tenant has the right to use rented premises without unreasonable or unnecessary disturbances. The best way to avoid any problems arising is for the landlord and tenant to discuss at the beginning of the tenancy how the share accommodation will work in practice.
The landlord must also take reasonable steps to prevent any neighbouring tenants of the landlord from interfering with the tenant’s quiet enjoyment of the property. This means that if the landlord is aware that their neighbouring tenants are interfering with the quiet enjoyment of the rented premises by the affected tenant, then they must take action to stop or prevent the neighbouring tenants from doing so. What amounts to ‘reasonable steps’ will depend on how serious the interference is by the neighbours.
In share accommodation where the landlord has multiple tenants under separate agreements in one property, it is very important that the landlord ensures that the tenants do not interfere with each other’s quiet enjoyment of the premises. The best way to avoid any problems from arising, this is to introduce the tenants to each other and discuss how the share accommodation will work in practice.
The landlord does not have responsibility for neighbours of the tenant who are not also tenants of the landlord.
In addition to the rights listed above, tenants also have a number of obligations that they must fulfil during the tenancy. The tenant must use the rented premises only or mainly as a residential premises, and not for business purposes unless the agreement allows for this. It is important for tenants meet these obligations to avoid potentially having to pay compensation to the landlord, or the tenancy agreement being terminated.
What the tenant must not do
The tenant must not do any of the following things:
What the tenant needs to do
During the tenancy, the tenant has the following obligations:
At the end of the tenancy, the tenant has the following obligations:
Tenants will be held liable for any breach of the above obligations that are made by people who are lawfully at the rented premises. For example, this means that the tenant will be liable for damage to the premises caused by their family members, visitors, sub-tenants / boarders, or trades persons hired by the tenant. The tenant will generally not be liable for the actions of people who are not lawfully on the premises, e.g. trespassers like burglars or people whose permission to be at the premises has been revoked by the tenant.
These legal guides provide a brief summary and introduction of the laws and regulations affecting share accommodation. They do not cover all cases in all legal jurisdictions and might not apply in your specific share accommodation situation. It is important that you use this information as a guide only and seek independent Legal Advice or consult the Relevant Acts. We do not accept any liability that may arise from the use of this information.