In NSW, there are 3 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.
In NSW, there are 5 common share accommodation situations. Different types of agreements apply to each situation. In most cases, a residential tenancy agreement should be used.
The 5 situations are:
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. NSW tenancy law will automatically apply.
In this situation you should always use the standard form Residential Tenancy Agreement and the Rental Bond needs to be registered with the Rental Bond Board.
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 Rental Bond needs to be registered with the Rental Bond Board.
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. 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 use the Change of Shared Tenancy Arrangement Form.
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. Flatmates strongly recommends using the standard form Residential 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. 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.
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 out 1-4 rooms 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. Flatmates strongly recommends using the standard form Residential 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).
Type of Agreement: Boarding House (occupancy) agreement
A boarding house (occupancy) agreement should only be used when the landlord is renting 5 or more rooms in a registered boarding house.
In this situation, the boarder (or lodger/roomer) will usually occupy a room and have shared access to facilities such as bathrooms, laundries, or kitchens with other boarders.
Generally, boarding agreements will only apply to commercial scale accommodation providers. If this applies to your situation, you should use the standard form Occupancy Agreement.
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.
