Share house mix-ups: getting the house in order...

Pinky rented a house of straw, but it fell down, so he moved in with Perky.

Perky's place was a little more substantial but, being made of sticks, it couldn't really withstand the extra wear and tear that an additional occupant brought upon it. It fell down, too. So Pinky and Perky set off to find somewhere new to live.

Their Great Uncle Porky had just scored a nice, new 3 bedroom brick veneer number out in the 'burbs, so they loaded up the wagon and made a bee-line for the boondocks.



At first, Porky wasn't all that sure about letting Pinky and Perky move in - after all, there was an unexplained gap in their rental references that stretched all the way from 1971 to 2008. But he did have all that extra space, and he really couldn't say no to the kind of money they were offering. After some brief but robust negotiation he had a couple of extra keys cut, and told them to chose their rooms. They all lived happily ever after.

Or did they? Borne of the Depression era, Porky could never quite understand the sheer excesses of his freewheelin' flatmates. After a few too many arguments and excuses about why the rent was late and the fridge was empty, Porky realised that he'd had enough. He packed his bluey, and humped it.

This left everyone with a bit of a problem, because Porky did not transfer his tenancy to either Pinky or Perky, and he did not obtain the landlord's consent to sub-let the premises before they moved in (see this previous Brown Couch post for more on this). Legally, Porky is still the tenant, but nobody knows where he is. The occupants, Pinky and Perky, have no legal relationship with the landlord - in fact he probably doesn't even know who they are.

Thankfully, this has never really been a practical concern, because Pinky and Perky took Porky's departure to heart. They've really pulled back their reckless ways, and getting the rent paid on time has been their number one priority since the day Porky left; and the landlord - being one of those strong silent types - has never seen fit to worry about the place as long as the rent keeps coming in...

But then one day, the landlord sold the place, and a new landlord came along. This new landlord wanted to know who his tenants were, and when he couldn't find their names on the lease, or any evidence of the tenancy being transferred, he threatened to huff, and puff, and to blow the house down.

Thankfully for Pinky and Perky, the Residential Tenancies Act 2010 offers a solution. Section 77 allows an occupant to apply to the Tribunal to be recognised as a tenant, if the original tenant no longer occupies the premises. (This specific provision is in similar terms to section 35 of the Residential Tenancies Act 1987 - now repealed - so it is likely that the Tribunal will be guided by any decisions made with reference to that section).

But, theoretically, the landlord could just establish a new agreement with Pinky and Perky anyway - if he wanted to. This is based on the assumption that Porky's tenancy has been terminated by abandonment or repudiation (section 81(4) of the 2010 Act), so a new agreement can be entered into. A sensible landlord would, of course, obtain Tribunal orders about the abandoned tenancy before entering into a new agreement, to avoid complications if Porky in fact has other ideas (say Pinky and Perky had lied about his disappearance in order to oust him as the tenant - but he'd really only been at his brother George's house for a few weeks).

None of this is particularly new either - the same arguments would equally have applied under the 1987 Act, and the old case law on abandonment should still have some value. The 2010 Act does set out some of the things the Tribunal may consider before deciding whether or not the tenancy has been abandoned (section 106), whereas the 1987 Act did not, but these are the sorts of things that the Tribunal tended to consider under the 1987 Act anyway.

What the 2010 Act does that is really new is something that mixed-up share house occupants ought to be immediately aware of. Under section 95, the landlord can give any occupants (ie anyone who isn't a tenant of the landlord directly) 14 days notice requiring them to vacate the premises, if the tenant no longer resides at the premises and the tenancy has been terminated. As we've already seen, the tenancy could theoretically have been terminated by abandonment, even though the ex-flatmates of the former tenant remain in residence.

Any occupant of a shared rental house who is not the landlord's tenant should therefore seek advice on how to be recognised as a tenant, in order to obtain the protection of a residential tenancy agreement. This will be a lot harder to do once the landlord decides to move you on, and will entitle you to 90 days notice of termination (unless you breach the agreement) instead of 14 days notice to vacate. Contact your local Tenants' Advice & Advocacy Service if you think this might apply to you.

But there's another good reason for cleaning up share house mix-ups. Pinky and Perky may in fact be Porky's sub-tenants with all the rights and obligations provided by the 2010 Act, because of a qualifier in section 10 - the Act's exclusion to share house occupants without a written sub-tenancy agreement doesn't apply where the named tenant resides elsewhere. In other cases, occupants may be sub-tenants subject to a written residential tenancy agreement with the now absent head-tenant.

In such circumstances, a 14 day notice to vacate may provide the landlord with a lawful opportunity to bring the occupation of premises to an end, but it wont end the sub-tenancy agreement... Sub-tenants who are evicted without proper notice may have a legitimate grievance against the head-tenant, and may be entitled to compensation because their quiet enjoyment of the premises has been interfered with.