What is my share accommodation situation? - Western Australia

Understanding which laws apply to your agreement will help you know your rights and obligations. Flatmates recommends using residential tenancy agreements in most share accommodation situations.

What are the different types of share accommodation agreements?

In Western Australia, there are 2 legal categories of agreement that can cover share accommodation. Knowing which one should apply to your situation is essential for understanding what the relevant rights and obligations are.

What type of agreement applies to my situation?

In Western Australia, there are 4 common share accommodation situations. Different types of agreements apply to each situation. In most cases, a residential tenancy agreement should be used.

The 4 situations are:

1. Landlord rents entire property to single tenant

Type of Agreement: Residential Tenancy Agreement

This is the standard rental situation where one tenant rents an entire property (i.e. a house or apartment) from the landlord. Western Australian tenancy law will automatically apply.

In this situation you should always use the standard form Residential Tenancy Agreement and the Security Bond needs to be registered with the Department of Commerce Bond Administrator.

2. Landlord rents entire property to multiple co-tenants under one agreement

Type of Agreement: Residential Tenancy Agreement

This is common in share accommodation arrangement, where a group of co-tenants are listed on a single tenancy agreement. This situation is the same as a single tenant renting a whole property.

In this situation you should always use the standard form Residential Tenancy Agreement and the Security Bond needs to be registered with the Department of Commerce Bond Administrator.

All co-tenants jointly share the same rights and obligations under the tenancy agreement. The division of rent is a matter of agreement between the co-tenants, but all co-tenants are jointly liable for the whole of the rental amount and any damages that occur to the property.

If an existing tenant (or co-tenants) wants to add another person to the agreement as a co-tenant, they must gain the landlord’s consent. Consent may be given or withheld in the Tenancy Agreement. Alternatively, the agreement can require that the existing tenant obtain the written consent of the landlord at any time to add another tenant to the agreement. If this is the case, the landlord cannot withhold consent unreasonably. Usually the landlord can only refuse consent if adding a new co-tenant would result in over-crowding or a breach of the tenancy agreement. To add a new co-tenant, you should add their name as a tenant to the existing tenancy agreement. Any changes should be initialed by the incoming tenant, outgoing tenant, and the landlord.

3. Sub-tenant rents a room from a head-tenant, with access to shared facilities

Type of Agreement: Residential Tenancy Agreement (recommended) or common law agreement (suggested: Flatmate Agreement)

This is another common share accommodation situation. The landlord rents the entire premises to the head-tenant under a residential tenancy agreement. The head-tenant then rents part of the premises to the sub-tenant. Under the sub-tenancy agreement, the sub-tenant usually has exclusive use of a bedroom and shared use of facilities like bathrooms and kitchens with the head-tenant.

The agreement between the head-tenant and sub-tenant can be classified as either a residential tenancy agreement or a common law agreement, depending on the exact circumstances. The main difference between the two types of agreement is that tenants have an exclusive right to occupy the premises, meaning they have control over who can enter.

Flatmates strongly recommends using the standard form Residential Tenancy Agreement because it provides balanced rights and obligations for both parties and clear processes for the tenancy agreement.

In this situation, the head-tenant is in effect the landlord to the sub-tenant. The agreement should clearly state the areas of the house that the sub-tenant has exclusive use of (e.g. bedroom) and shared use of (e.g. bathrooms, kitchens). Before the head-tenant can sub-let to a sub-tenant, they must gain the consent of the landlord. Consent may be given or withheld in the Tenancy Agreement. Alternatively, the agreement can require that the existing tenant obtain the written consent of the landlord at any time to add another tenant to the agreement. If this is the case, the landlord cannot unreasonably refuse to give consent. Usually, the only reason the landlord can refuse consent is if the sub-tenancy would result in overcrowding of the premises or a breach of the tenancy agreement with the head-tenant.

4. Live-in landlord rents rooms to 1 or more people on separate agreements, with access to shared facilities

Type of Agreement: Residential Tenancy Agreement (recommended) or common law agreement (suggested: Flatmate Agreement)

This is another common share accommodation situation. In these circumstances, the landlord lives at the premises and rents rooms to 1 more people on separate agreements. Under each of these agreements, the tenant usually has exclusive use of a bedroom and shared use of facilities like bathrooms and kitchens with the landlord (and other tenants).

Each of the agreements can be classified as either  a residential tenancy agreement or a common law agreement, depending on the exact circumstances. The main difference between the two types of agreement is that tenants have an exclusive right to occupy the premises, meaning they have control over who can enter.

Flatmates strongly recommends using the standard form Residential Tenancy Agreement because it provides balanced rights and obligations for both parties and clear processes for the tenancy agreement.

In this situation, it is important that the agreement clearly state the areas of the house that each tenant has exclusive use of (e.g. bedroom) and shared use of (e.g. bathrooms, kitchens).

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