Naked in share housing

We kicked off Share Housing Month by talking about the different ways in which you, as an occupant of share housing, can get covered as a tenant the Residential Tenancies Act.

Now we turn to what happens if you're not covered. And in New South Wales, if you're not covered as a tenant under the Act, you're not covered by any other legislation. You're what we call a marginal renter, and you are legislatively naked.

(Share house marginal renters out and about in Sydney. By Spencer Tunick.)

In fact, in terms of legislated rights and remedies, share house marginal renters have it even worse than other sorts of marginal renters, such as those living in boarding and lodging houses. This is because the operators of boarding and lodging houses are generally in business, and as such their boarding and lodging contracts are covered by the Consumer Claims Act 1998. This gives boarders and lodgers, as 'consumers' of boarding and lodging services, some recourse to the Tribunal for remedies to do with the payment of money or supply of services (but nothing about notice periods, how terminations are done, written agreements and receipts, and other important aspects of their housing).

But share housing is generally run on a subsistence basis, and your typical head-tenant is not 'in business'.

This means you are subject to the common law of lodging only – and we say 'subject to', not 'covered by', because the common law is less a covering than a chill breeze that discomforts and diminishes the unfortunate, uncovered lodger. It comes virtually unchanged from the nineteenth century, and its essential principle is caveat emptor – let the buyer beware. The terms of common law lodging agreements ('licences') are those the parties agree to; in practice, this means they are what the grantor says is on offer, take it or leave it.

Legally speaking, then, a twenty-first century share house lodger might as well be living in a nineteenth century common lodging house. (Hopefully not this one; but the scene in this one may be appropriate to our metaphor.)

We need a decent, basic legislated regime for renters who fall outside our current residential tenancies legislation. We've proposed the occupancy agreements model, along the lines of the Australian Capital Territory's legislation, and independent Sydney MP, Clover Moore, has introduced a Bill for such legislation into the NSW Parliament. 

This legislation would cover all otherwise uncovered renters, including share house lodgers, and, as a cover-all, it's pretty basic – but it also provides for the making of more detailed provisions for specific classes of occupancy agreement by subsequent regulations. It is, to stretch our metaphor to breaking point, a simple bathrobe thrown about the naked marginal renter, with the prospect of something better fitting – indeed, tailor-made – to come. 

But at least until we get this sort of legislation in New South Wales, keep trying as best you can to get covered by the Act.