What is my legal position?

1. Co-tenants

Legally, this is where two or more tenants sign the Residential Tenancy Agreement. As the agreement is between the landlord and tenants, each of these co-tenants is jointly and individually responsible for paying the rent and bond and for any damage to the house. This means that any one of these co-tenants can be held wholly liable for any debt owed to the landlord.

Even if your name is not written on the lease, you may still be recognised as a co-tenant if it can be proved that you have taken on the legal responsibilities of a tenant. One way this could happen is if the original tenants have moved out, no-one in the house has their name on the agreement now, and the landlord has been told this and still accepts rent from you.

2. Head-tenant/sub-tenant

In this situation, the sub-tenant enters an agreement with the head-tenant (the person whose name is on the lease with the landlord) to have exclusive use of a room and to share other facilities equally.

The head-tenant must have the landlord’s permission to sub-let. If the head-tenant lives at the premises, a landlord can’t reasonably refuse a partial sub-let. The head-tenant can apply to the Tribunal for an order to sub-let if the landlord says no. The Tribunal will do this if it agrees that the landlord has unreasonably withheld consent.

You should get permission to sub-let in writing, see below.

Download a Consent to sub-let form here

Put your sub-tenancy agreement in writing

Under the Residential Tenancies Act, if the head-tenant lives in the share house, a spoken agreement between a head-tenant and a sub-tenant will not be regarded as a tenancy agreement and the sub-tenant will not be covered by the Act. These types of share housing arrangements are usually informal and sub-tenants don’t always think to get their agreement in writing. Often sub-tenants just assume that they are tenants covered by the Residential Tenancies Act and don’t worry about having a written tenancy agreement at the beginning of the tenancy. If you want to have the same rights as a tenant, you must have a written residential tenancy agreement.

If you are covered by the Act, the head-tenant must give the sub-tenant a written notice of termination. Also, the sub-tenant can’t leave without giving the head-tenant proper notice, leaving them to cover all of the rent. In addition, either party can apply to the Tribunal if there are any disputes about bond. You need to decide what type of arrangement works best for your share house. If your intention is for the Act to apply, you must have a written agreement. See the Share housing Agreement in Useful Resources, which can downloaded to use in your share house. Download a copy of the Sharehousing Agreement.

If the head-tenant sub-lets and does not live in the house, an oral agreement is adequate and the sub-tenant is covered by the Act.

The relationship of a sub-tenant with a head-tenant is legally identical to that of a tenant with a landlord. For example, sub-tenants must pay rent to the head-tenant and the head- tenant must carry out repairs. As a sub-tenant, you do not have a direct relationship with the owner of the house, so any complaints must be dealt with through the head-tenant.

3. Boarder/lodger

If the landlord keeps overall control of the house, including your room, then you are likely to be a boarder or a lodger. The most common situations are where you share a house with the owner, or you live in a boarding house, where you rent a room and can use common facilities but generally have no say in the overall running of the establishment.

If you receive services from your landlord such as cleaning, washing or providing linen, this may mean you are a lodger. However, it is not necessary to receive these services to be classified as a lodger. If your landlord provides meals, you would be classified as a boarder with the same rights as a lodger.

Boarders and lodgers are not covered by the Residential Tenancies Act.

Residents of boarding houses that provide beds for five or more people (not counting the owner or manager) for a fee are covered by the Boarding Houses Act. The Boarding Houses Act has a set of occupancy principles that give residents rights about repairs, getting notice before an eviction, and getting receipts for payments among other things. Some of these protections are weaker than under the Residential Tenancies Act – for example the occupancy principles say that a resident must be given reasonable notice before they are evicted, whereas the Residential Tenancies Act has set notice periods that tenants must be given. Residents can take disputes about these rules to NCAT.

Boarders who are not covered by the Boarding Houses Act can be evicted with very little notice and cannot ask for tenancy or boarding house remedies at NCAT.

It’s important to know that just because you live in a place with five or more beds doesn’t mean you’re automatically a boarder and not a tenant. What matters is the content of your agreement. The Residential Tenancies Act does not actually define what a boarder or a lodger is. Some residents of boarding houses and share houses have been able to establish at the Tribunal that they were tenants and gain the protection under the Residential Tenancies Act. If you are unsure of your tenancy status and a problem arises with your landlord, contact your local tenants’ advice service (see Contact Points). Also see Boarders & Lodgers Kit for more information (see Useful Resources).