J
Articles
Creeping reforms to Landlord and Tenant
Law: the case of boarders and lodgers
Adrian J Bradbrook*
This paper considers the legal position of boarders and lodgers, who have
traditionally been denied recognition by the common law as holders of an
estate in land. The paper discusses the current position at common law and
then considers the modifications introduced in recent years by modern state
and territory legislation. The weaknesses and deficiencies in this legislation,
in comparison with modern residential tenancies legislation, are discussed in
detail. Various law reform proposals are advanced in order to provide a fair
balance between the rights and duties of boarding house residents and
proprietors and in order to ensure that boarding houses continue to
constitute an important source of affordable housing.
Introduction
An examination of past experience in Australia and other common law
countries shows that a particularly controversial issue encountered by
legislatures when debating the enactment of residential tenancies legislation is
the determination of which premises should be subject to the new laws. One
of the major issues is whether the legislation should be limited in its scope to
leaseholds, as understood at common law, or whether it should be extended to
cover certain agreements that are classed by common law as contractual
licences.
The origin of the move towards the introduction of residential tenancies
legislation in Australia was the 1975 report of the Commonwealth Commission
of Inquiry into Poverty (the Poverty Inquiry).1 This recommended that any
new residential tenancies legislation should encompass boarders, roomers and
lodgers on the ground that they share many of the characteristics of tenants
although they are not tenants in the technical sense.2 This was followed in
Victoria by the report of the Community Committee of Tenancy Law Reform,
which endorsed the majority of the recommendations of the Poverty Inquiry.3
Although the bulk of the recommendations of the Poverty Inquiry were
adopted in the residential tenancies legislation progressively adopted in all
states and territories from 1978 onwards, there was no automatic extension of
* Bonython Professor of Law, University of Adelaide, Australia; Part-time Member, South
Australian Residential Tenancies Tribunal. This article is a modified version of a paper
presented at the 5th Australasian Residential Tenancies Conference, held in Christchurch,
New Zealand, in October 2003.
1 Two reports were published: A Bradbrook, Poverty and the Residential Landlord and Tenant
Relationship, AGPS, Canberra, 1975; and R Sackville, Law and Poverty in Australia, AGPS,
Canberra, 1975.
2 Sackville, at 59–60.
3 See Victorian Council of Social Service, Consultation and Government, Melbourne, 1981.
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the legislation to boarders and lodgers. For example, s 7(2)(d) of the
Residential Tenancies Act 1978 (SA) specifically exempted boarders and
lodgers from the scope of the legislation. This exclusion has been continued
in the Residential Tenancies Act 1995 (SA),4 by virtue of s 5(1)(b).
The common law background
In common parlance the distinction between a tenancy and a rooming house
or boarding house is fairly clearly understood. Power and McKenna describe
a rooming house as having the following characteristics:
• the provision of primarily single room accommodation;
• the provision of some shared facilities (such as the bathroom, laundry
and kitchen);
• accommodates short and/or long-term residents;
• in some instances, the provision of meals;
• no formal support for disabled or other handicapped residents;
• run as private, government owner and managed or community owned
and managed.5
At common law, however, the matter is more complex. The basic reason for
the exclusion of boarders and lodgers from the legal protections afforded to
tenants was the traditional distinction between leases and licences, which is a
hallmark feature of the common law of leases. The common law test used to
distinguish between leases and licences was that of exclusive possession.6
This test could be validly stated both positively and negatively. Stated
negatively, the legal proposition was that no tenancy could exist unless the
tenant was granted the right of exclusive possession. Stated positively, the law
was that the grant of a right of exclusive possession automatically created a
tenancy. Despite later decisions of the English courts to introduce a rival
intention test to determine the difference between a lease and a licence,7 the
Australian courts have maintained the traditional exclusive possession test.
The major Australian authority on this issue is Radaich v Smith.8 This case
concerned a deed entitled a ‘licence’, whereby the licensors granted to the
licensee for a term of 5 years the sole and exclusive licence to supply
refreshments to the public admitted to a certain shop and to carry on the
business of a milk bar therein. The High Court unanimously agreed that
despite the fact that the document was referred to as a licence, the court should
examine the substance of the document rather than its form. The test of
exclusive possession was regarded as decisive. The exclusive possession test
4 This Act repealed and replaced the Residential Tenancies Act 1978 (SA).
5 C Power and T McKenna, ‘Boarding House Legislation — The Victorian Experience’, paper
presented at the 5th Australasian Residential Tenancies Conference, Christchurch, New
Zealand, October 2003, at 3.
6 For a detailed discussion of the relevant areas of the common law, see A Bradbrook and
C Croft, Commercial Tenancy Law in Australia, 2nd ed, Butterworths, Sydney, 1997, Ch 3;
A Bradbrook, S MacCallum and A Moore, Australian Real Property Law, 3rd ed, Thomson
Law Book Co, Sydney, 2002, Ch 12.
7 See, for example, Somma v Hazelhurst [1978] 1 WLR 1014; Marcroft Wagons Ltd v Smith
[1951] 2 KB 496; Errington v Errington and Woods [1952] 1 KB 290.
8 (1959) 101 CLR 209.
Creeping reforms to Landlord and Tenant Law
3
has been affirmed as applicable in Australia in many subsequent cases.9
Radaich v Smith has been followed by the House of Lords in Street
v Mountford.10 In this case, the court held that a lease exists whenever there
is a grant of exclusive possession for a fixed or periodic term at an agreed rent.
The stated intention in the document signed by the parties, that only a licence
was to be created, was held to be irrelevant. Lord Templeman stated:
The only intention which is relevant is the intention demonstrated by the
agreement to grant exclusive possession for a term at a rent. Sometimes it may be
difficult to discover whether, on the true construction of an agreement, exclusive
possession is conferred. Sometimes it may appear from the surrounding
circumstances that the right to exclusive possession is referable to a legal
relationship other than a tenancy . . . But where as in the present case the
circumstances are that residential accommodation is offered and accepted with
exclusive possession for a term at a rent, the result is a tenancy.11
Boarders and lodgers will thus be excluded under common law rules if they
are considered to lack exclusive possession of their premises. It is not
sufficient for an occupant to prove merely that they have exclusive possession
of their bedroom. An occupant of premises will be classified as a licensee
rather than a tenant if the owner retains ‘general control’ over the premises.12
It is always a question of fact whether or not the owner exercises a right of
general control over the premises. Where the owner lives in another part of the
same building, there is a presumption that any occupier of part of the building
will be a lodger.13 However, the owner may on the facts exercise general
control regardless of whether he or she resides in the premises.14 There
appears to be a presumption of the owner’s general control if the owner retains
control of the outer door of the building,15 or if the owner performs services
such as providing meals, cleaning the room or making the bed.16 Nevertheless,
the cases of Hoare v O’Neill17 and Stephenson v Morgan18 must be borne in
mind. In the former case, a tenancy was held to exist where the occupant had
exclusive possession of only a bedroom and an alcove containing a sink and
a gas ring. All other facilities were shared. The court was influenced by the
9 See, for example, Goldsworthy Mining Ltd v FCT (1973) 128 CLR 199; ICI Alkali (Aust)
Pty Ltd (in vol liq) v FCT [1977] VR 393; (1977) 11 ALR 324; Lapham v Orange City
Council [1968] 2 NSWR 667; General Discounts Pty Ltd v Crosbie [1968] Qd R 418;
Streatfield v Winchcombe Carson Trustee Co (Canberra) Ltd [1981] 1 NSWLR 519.
10 [1985] AC 809; [1985] 2 All ER 289. Discussed in (1987) 14 UQLJ 167; [1987] Conv 137;
[1986] Conv 344; [1986] Conv 39; [1985] CLJ 351. This case was followed in Gray v Taylor
[1998] 1 WLR 1093b; [1998] 4 All ER 17; Bruton v London & Quadrant Housing Trust
[2000] 1 AC 406; [1999] 3 All ER 481.
11 [1985] AC 809 at 826; [1985] 2 All ER 289.
12 Torrisi v Oliver [1951] VLR 380; [1951] ALR 812; McCombe v Smith (1950) 52 WALR 12;
Honig v Redfern [1949] 2 All ER 15.
13 Varella v Marsicovetere [1954] VLR 550; [1954] ALR 853; Downie v Taylor [1954] VLR
603; [1954] ALR 1047.
14 Thompson v Ward (1871) LR 6 CP 327 at 361.
15 R v Assessment Committee of St George’s Union (1871) LR 7 QB 90.
16 Holiday Flat Co v Kuczera [1978] SLT 47; Wilkes v Goodwin [1923] 2 KB 86; Abbeyfield
(Harpenden) Society Ltd v Woods [1968] 1 WLR 374; [1968] 1 All ER 352; Smith
v Overseers of St Michael, Cambridge (1860) 3 El & El 383; 121 ER 486.
17 [1961] NSWR 837.
18 (1963) 80 WN (NSW) 1719.
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fact that there was no intrusion into the occupant’s room by the owner, that the
occupier possessed a key to a separate portion of the house, and that the
consideration was described as ‘rent’. In the latter case, a family was
permitted by the owner to live in the owner’s house with him and to have
exclusive possession of two bedrooms but to share in common with the owner
the use of all the other rooms. It was held that these facts were not necessarily
fatal to the claim by the occupants of a tenancy. The court added that proof of
exclusive occupation over a long period may, without more, lead to the
inference of a tenancy.19
Recent legislation
A consideration of the common law position, outlined above, shows that the
distinction between leases and licences is highly ambiguous and difficult to
determine in any given situation. The distinction was developed by the courts
in the United Kingdom many centuries ago when the housing situation was
fundamentally different from that experienced in Australia and New Zealand
in the early twenty-first century.20
Since the introduction of the initial residential tenancies legislation
following the report of the Poverty Inquiry, there have been gradual, creeping
reforms to landlord and tenant law seeking to expand the scope of the statutory
protections in other contexts. These extensions have not been consistent in
scope or uniform in their terms, but in some jurisdictions have encompassed
long-term occupants of caravan parks,21 public housing tenancies (where these
were exempted under the initial legislation)22 and retail shop leases.23
Another area of expansion currently in the process of evolution is that
relating to boarders and lodgers. Various studies have shown that boarding
houses are an important element of the housing options available in major
cities and are used for an increasing number of people (primarily male) reliant
on government income support. A recent report prepared by the South
Australian Department of Human Services states that boarding houses supply
a unique form of affordable, convenient and available accommodation to
people experiencing housing and other vulnerability.24 However, the same
19 Id at 1724.
20 For a discussion of the history of this area of law, see A Bradbrook, ‘The Evolution of
Australian Landlord and Tenant Law’, in M Ellinghaus, A Bradbrook and A Duggan (eds),
The Emergence of Australian Law, Butterworths, Sydney, 1989, Ch 6; A Plucknett, History
of English Law, 5th ed, 1956, 373–4 and 570–4.
21 Residential Tenancies Act 1997 (Vic), Pt 4; Residential Tenancies Act 1994 (Qld), Pt 6;
Residential Parks Act 1998 (NSW).
22 An illustration is South Australia, where the earlier residential tenancies legislation
exempted the South Australian Housing Trust from the Act (Residential Tenancies Act 1978,
s 6(2)). The majority of the Residential Tenancies Act 1995 now applies to the Housing Trust
as a result of s 24(1)(b) (proclaimed on 1 July 1996).
23 See Retail Shop Leases Act 1994 (Qld), Retail Leases Act 1994 (NSW), Retail Leases Act
2003 (Vic), Retail and Commercial Leases Act 1995 (SA), Commercial Tenancy (Retail
Shops) Agreements Act 1985 (WA), Commercial Tenancies Act 1979 (NT). A Commercial
and Retail Leases Code of Practice has been in operation in the Australian Capital Territory
since 1995.
24 P Anderson, A Hume, N Rogers and T Stephenson, ‘It’s No Palace: Boarding Houses — The
Sector, Its Clientele and Its Future’, Department of Human Services, Adelaide, 2003, at 77.
Creeping reforms to Landlord and Tenant Law
5
report adds that boarding houses often have poor standards and insecure
tenancy, and that residents in boarding houses are at risk across a range of
dimensions.25 An earlier report argues that all residents of boarding houses are
in effect homeless due to their lack of housing tenure and housing choice, and
the poor quality of amenities provided which fails to meet community
standards of basic accommodation.26
If the justification for the introduction of residential tenancies legislation is
the lack of bargaining power of tenants vis-a-vis landlords, this appears to
apply a fortiori in the case of rooming houses. Kliger has recently reported on
the following characteristics of rooming house residents:
• a high proportion have disabilities, particularly psychiatric illness,
cognitive impairment and alcohol and substance abuse addictions;
• an increasing number are from non-English speaking backgrounds;
• a lower labour force participation rate than the general population,
with 18% unemployed and 54% not in the labour force;
• significantly below-average incomes, with the majority receiving
their incomes from government payments; and
• over half the residents receive Centrelink Rent Assistance.27
Modern legislation seeking to apply at least some of the statutory
protections afforded to tenants to boarders and lodgers now exists in Victoria,
Queensland, South Australia and the Northern Territory, although the
provisions are by no means uniform.28 The South Australian provisions will be
discussed as an illustration of the nature of these reforms. The new South
Australian law is contained in the Residential Tenancies (Rooming Houses)
Regulations 1999 (SA) (hereafter referred to as the regulations), made
pursuant to the Residential Tenancies Act 1995 (SA) (hereafter referred to as
the Act). The regulations came into effect on 30 January 2000.
The new provisions seek to avoid the confusion of terminology between
‘boarders’, ‘lodgers’ and ‘roomers’ by consistently referring to ‘rooming
house residents’. A ‘rooming house’ is defined in s 3 of the Act as ‘residential
premises in which: (a) rooms are available, on a commercial basis, for
residential occupation; and (b) accommodation is available for at least three
persons on a commercial basis’. ‘Rooming house agreement’ means ‘an
agreement under which accommodation is provided (with or without meals, or
other facilities or services) in a rooming house’.
The provisions governing the relationship between rooming house residents
25 Ibid.
26 C Chamberlain and G Johnson, ‘The Debate About Homelessness’ (2001) 36 Australian
Journal of Social Issues 111.
27 B Kliger, Rooms for the Future — Strategy and Action Plan for the retention and
development of Socially Responsible Private Rooming Houses, Melbourne, 2003, at 4–5.
28 Residential Tenancies Act 1997 (Vic), Pt 3 (which repealed and replaced the Rooming
House Act 1990 (Vic); Residential Services (Accommodation) Act 2002 (Qld); Residential
Tenancies (Rooming Houses) Regulations 1999 (SA); Residential Tenancies Act 1999 (NT).
For a recent discussion of the Queensland legislation, see D Breen, ‘Regulation of the
Queensland Boarding House Industry — Have We Achieved Regulatory Rigor?’, paper
presented at the 5th Australasian Residential Tenancies Conference, Christchurch, New
Zealand, October 2003. In Tasmania the recently-enacted Residential Tenancy Amendment
(Boarding Premises) Act 2003 will extend similar controls to rooming houses in that state.
This Act has not yet been proclaimed in effect.
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and proprietors are contained in the text of the regulations, the Code of
Conduct for Rooming House Proprietors specified in Sch 1 of the regulations,
the Implied Terms established in Sch 2 of the regulations, and Pt 7 of the Act,
comprising ss 103–105A.
The Code of Conduct deals with security bonds and the security of rooms.
Clause 1, relating to security bonds, limits the maximum amount of any
security bond to 2 weeks’ rent, although it does not require the proprietor to
pay the bond into the Residential Tenancies Fund as in the case of tenancies.29
Any bond must be returned to the resident on termination of a rooming house
agreement unless the proprietor can show that the tenant has damaged the
premises or left it in an unclean condition, or unless the resident owes money
for rent or payments for meals, facilities or other services provided by the
proprietor. Clause 2 requires the proprietor to provide and maintain the locks
and other devices necessary to ensure that each resident of the rooming house
may make his or her room secure. Any breach by either party is declared by
s 104 an offence punishable in the case of a proprietor by a maximum penalty
of $1000, and in the case of a resident by a maximum penalty of $200.
Schedule 2 contains general obligations of both parties, which will be
regarded as implied terms of any rooming house agreement. The obligations
on the proprietor are to respect the quiet enjoyment, reasonable peace, comfort
and privacy of each resident in respect of his or her room and the general
facilities; to ensure that the resident has reasonable access at all times to the
resident’s room and to the toilet and bathroom facilities; to take reasonable
steps to ensure the security of personal property of each resident of the
rooming house; and to ensure that the resident’s room and any shared facilities
are maintained in a reasonable state of repair. The obligations on the resident
are to pay the rent when it falls due; to observe and applicable house rules; not
to use the premises for an illegal purpose; not to keep an animal on the
premises without the proprietor’s consent; to keep his or her room in a
condition that does not give rise to a fire or health hazard; to notify the
proprietor of any damage; and to allow the proprietor reasonable access to the
resident’s room.
The regulations authorise the continuation of the existing practice of
proprietors establishing house rules regulating the conduct or behaviour of
residents of rooming houses. However, by reg 7 all house rules must be in
writing, and any rule that conflicts with the code of conduct, is harsh or
unconscionable, or is made for a purpose other than enhancing the health or
safety of persons or the safety of property is declared to be void and of no
effect. Any variation to the house rules must give the residents a minimum of
7 days’ notice before coming into effect. A copy of the house rules, together
with the regulations, must be displayed in a prominent place at the rooming
house and, on request, be given to each resident.
Several provisions in the regulations control the amount of consideration
payable by the resident. The proprietor may not demand the payment of rent
more than one week in advance: reg 10(1). Prima facie the only permissible
payments are for rent and security bond (reg 9(1)), although a proprietor may
29 The Residential Tenancies Fund is administered by the Commissioner of Consumer Affairs:
Residential Tenancies Act 1995 (SA), s 62.
Creeping reforms to Landlord and Tenant Law
7
require the resident to pay for rates and charges for water supply, the provision
of electricity, gas or telephone services at the premises, or for meals or other
facilities provided by the proprietor, if the proprietor has previously informed
the resident in writing of the basis on which charges for those facilities or
services would be made: reg 9(2). Receipts in a specified form must be given
for all payments: reg 11. All other payments, including any penalty clauses,
are outlawed by reg 15.
Rent increases may be imposed by rooming house proprietors on 4 weeks’
notice provided that at least 6 months have elapsed since the last increase:
reg 12(1), 12(2). If the accommodation at the rooming house is provided for
a fixed term, the rooming house agreement is taken to exclude a rent increase
during the term unless it specifically allows for an increase in rent:
reg 12(2)(b). The regulation does not affect the operation of a provision of a
rooming house agreement under which the rent payable under the agreement
changes automatically at stated intervals on a basis set out in the agreement:
reg 12(7).
The disposal by the proprietor of goods abandoned by the resident is
controlled by reg 14. Perishable goods may be immediately destroyed or
disposed of: reg 14(1)(b)(I). Other goods must be taken reasonable care of for
a period of 14 days following which, if they are not claimed by the resident,
may be likewise destroyed or disposed of: reg 14(1)(b)(ii).
The regulations provide a code for the termination of rooming house
agreements in reg 13. If the proprietor wishes to terminate the agreement on
the grounds of non-payment of rent, the proprietor must wait until the rent is
at least two rental periods or 2 weeks (whichever is the lesser) in arrears, and
may then give the resident a written notice informing the resident that if the
amount owing is not paid within a specified period (which must be at least
2 clear days) then the rooming house agreement is terminated by force of the
notice: reg 13(2). If the resident breaches a term of the agreement other than
that relating to the payment of rent, the proprietor may give the resident a
written notice informing the resident that the agreement is terminated by force
of the notice on a specified day, which must be not less than 7 clear days after
the day the notice is given: reg 13(3). Immediate termination is provided for
by reg 13(3) in circumstances where the rooming house resident or his or her
invitee causes serious damage to the rooming house, creates a danger to a
person or property in the rooming house, or seriously interrupts the privacy,
peace, comfort or quiet enjoyment of another resident. In such cases the
proprietor may give the resident a written notice terminating the agreement
immediately or on a specified date. Either party may terminate a periodic
rooming house agreement without specifying a ground for giving the notice,
in the case of the proprietor by giving at least 4 weeks’ written notice of
termination, and in the case of the resident by giving at least 1 day’s notice of
termination: reg 13(6).
The jurisdiction to resolve disputes involving rooming house agreements is
vested in the Residential Tenancies Tribunal (the tribunal). This marks a
further extension of the tribunal’s jurisdiction, which has already been
expanded beyond disputes between private parties to a tenancy agreement to
include disputes involving South Australian Housing Trust tenancies and those
between residents and management of retirement villages, under the terms of
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the Retirement Villages Act 1987 (SA).
Section 105 of the Act specifically gives the tribunal the power to
determine, on the application of a rooming house proprietor or resident, a
question arising under the code of conduct set out in Sch 1 to the regulations.
Other powers are given by a recent amendment to s 110 of the Act, which sets
out the general powers of the tribunal. Section 110(1)(c) gives the tribunal the
power to order compensation to either party for a breach of the rooming house
agreement or the Act, which is most commonly invoked in cases involving
claims of alleged damage and uncleanliness. Less commonly it is also invoked
in cases involving allegations of a breach by the owner of the obligation to
respect the resident’s quiet enjoyment, comfort or privacy. Section 110(1)(j)
gives the tribunal to order possession to the landlord in cases where the
proprietor proves his or her case under the termination provisions in reg 13.
Consistently with tenancy disputes, even though a rooming house agreement
is terminated by force of the termination notice under reg 13, a proprietor
cannot evict a resident without an order for possession issued by the tribunal.
The tribunal will not issue such an order automatically. In the discretion of the
tribunal member, it will be refused in cases where the breach is minor or, in
the case of non-payment of rent, where the resident is prepared and able to pay
off the arrears by instalments. In these cases the tribunal may reinstate the
agreement and make a conditional order for possession dependent on a
schedule of rent arrears repayments whereby possession will be granted if the
resident fails to comply with any one of the repayment instalments. The power
to impose such conditions is found in s 111 of the Act.
Critique and solutions
The recently enacted legislation and regulations controlling the relationship
between rooming house proprietors and residents is a welcome reform. It is
unfortunate that such reforms have taken over a quarter of a century to enact
after the initial recommendations of the Poverty Inquiry in 1975, but
nevertheless it is better late than never. That having been said, there are sadly
a number of deficiencies in the current regime.
The major problem relates to the definition of a ‘rooming house’ in s 3(1)
of the Act, cited earlier. The effect of this definition is to exclude from the
legislative protections all occupants of residential accommodation not
constituting tenants where only one or two rooms are offered for rent. There
appears to be no logical justification for this exclusion as all licensees of
residential premises have a similar need of legislative protection. The number
of rooms or persons in the property they are occupying is irrelevant. As a
result of the current provisions, there are effectively three legal categories of
occupants in terms of legal rights and duties: first, tenants, who have the full
protection of the Residential Tenancies Act; second, occupants of rooming
houses, who have certain rights under the Act and the rooming house
regulations; and third, other licensees, who have no effective legal rights at all.
At common law licensees have no recognised property rights and simply have
a right to sue in contract, a fairly worthless right in reality in light of the legal
formalities and expenses involved in any such litigation.
A further problem is that the definition of ‘rooming house’ appears to
exclude shared rooms. This issue has not yet been judicially determined in
Creeping reforms to Landlord and Tenant Law
9
South Australia, but in Victoria the similarly-worded definition contained in
s 3 of the now-repealed Rooming House Act 1990 (Vic), was held by the
Court of Appeal in Fisher v Aboriginal Hostels Ltd30 to exclude multiple
occupancy rooms. Callaway JA stated that ‘Parliament has not evinced an
intention to cover the case of a person who is simply permitted to live in a
room whose owner retains the right to allow other persons to live in it as
well’.31
Other difficulties arise from the fact that the reforms contained in the
regulations, while a considerable improvement from the common law rules
applying to licences, are not as strong or as comprehensive as those applying
to tenancy agreements under the Act. While some differences may be
justifiable based on the differences in the physical and more transitory nature
of the accommodation provided, in the majority of situations the need for
protective legislation applies equally to residents of rooming houses as to
tenants. Differences between the legal protections given to tenants and
rooming house residents currently exist in many areas, of which the following
examples are illustrative:
(1) Security bonds. In the case of tenancies, all bonds must be deposited
with in the Residential Tenancies Fund for the duration of the tenancy
agreement and must be refunded to the tenant at the end of the
agreement unless the landlord proves a legal entitlement to retain all
or part of the bond to the tribunal’s satisfaction.32 In the case of
rooming houses, the proprietor may retain the bond during the course
of the agreement. Even though the tribunal has jurisdiction to resolve
disputes over the bond, the fact that the tribunal does not retain
control of the bond makes enforcement of the tribunal’s order more
problematic.
(2) Abandoned goods. In the case of tenancies, all abandoned goods of
value must be stored by the landlord in a safe place for at least
60 days and then sold by public auction if not reclaimed,33 while for
rooming houses the obligation on the proprietor is only to take
reasonable care of the goods for 14 days, after which time they may
be destroyed or otherwise disposed of.34 The assumption appears to
be that rooming house residents will have little property of value,
which is of questionable validity. A further, related problem is that
the regulations do not prohibit a proprietor refusing to release goods
because of non-payment. This is in stark contrast with s 60 of the Act,
which prevents landlords from distraining tenants’ goods for
non-payment of rent.
(3) Termination of tenancy and rooming house agreements. In the case of
termination for non-payment of rent, the Act specifies that tenants are
30 [1998] VSCA 130; BC9807156.
31 Id, [29]. Tadgell JA (at [21]) stated that an exception may apply where joint occupiers
consent to their joint occupancy of a room (as, for example, in the case of a married couple
or a family).
32 Residential Tenancies Act 1995 (SA), ss 62–63.
33 Residential Tenancies Act 1995, s 97.
34 Residential Tenancies (Rooming Houses) Regulations 1999, reg 14.
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entitled to receive at least 7 clear days’ notice to remedy the breach,35
while the regulations specify that residents of rooming houses are
only entitled to 2 clear days’ notice.3636 Further, in the case of
periodic tenancy or occupancy agreements, while tenants are entitled
to receive a minimum of 90 days’ notice if no reason for termination
is specified,37 the corresponding period for rooming house residents
is only 4 weeks.38
(4) Unlike tenancy agreements, no forms are prescribed for rooming
house agreements. At present the terms of rooming house agreements
are uncontrolled and generally vague. Notices of termination are
often scribbled on scrap pieces of paper.39
(5) The power of tribunal members in the case of tenancies to appoint or
act as mediators where they consider that there is a reasonable
possibility of settling the matters in dispute between the parties
appears not to extend to similar disputes between rooming house
proprietors and residents.40
In light of the numerous inconsistencies and omissions, it appears that the
regulations and consequential amendments to the Act were drafted in some
haste. An illustration of this is s 110 of the Act, the section specifying the
majority of the powers of the tribunal. This has been amended in a patchwork
manner so as to extend some, but not all of the powers to rooming houses. The
failure to extend the power under s 110(1)(f), the power to reinstate rights
under a residential tenancy agreement that have been terminated, makes it
problematic whether the tribunal has the power to prevent proprietors
reclaiming possession of the premises merely by terminating an agreement by
serving notice on residents. The tribunal has been forced to extend other
general powers in order to justify reinstating rooming house agreements where
the tribunal believes that it is just and equitable to do so, but may have left the
way open for future appeals in the process.
Rather than seek to introduce specific regulations applying to rooming
houses and then graft them on to the existing Act, it is submitted that a better
approach would have been to amend the Act so as to include rooming house
agreements within the scope of the legislation and then to enact exemptions
from certain provisions in the Act where the physical and transitory nature of
rooming house justify them.
Equally important as legal changes, it is submitted that an extensive
advertising campaign should be undertaken to inform rooming house
proprietors and residents of the existence and terms of their new rights and
responsibilities under the regulations. Although no actual study has been
undertaken as to the level of awareness of relevant stakeholders in this regard,
it is clear that there is general ignorance of the new changes. Evidence of this
35
36
37
38
39
Residential Tenancies Act 1995, s 80(1).
Residential Tenancies (Rooming Houses) Regulations 1999, reg 13(2).
Residential Tenancies Act 1995, s 83(3).
Residential Tenancies (Rooming Houses) Regulations 1999, reg 13(5).
This is the personal experience of the writer. In addition, see P Patrick, Review of the South
Australian Residential Tenancies Act — Submission by the Presiding Member of the
Residential Tenancies Tribunal, Adelaide, May 2003, at 8.
40 Residential Tenancies Act 1995, s 34.
Creeping reforms to Landlord and Tenant Law
11
is the fact that while the regulations have been in operation for nearly 4 years,
as at September 2003 the tribunal has conducted only 24 hearings involving
rooming houses. In all of the cases heard by the current author, both parties
have displayed either partial or total ignorance of the regulations and their
respective legal rights and responsibilities. There is little point in having a
legislative regime unless there is a campaign to inform the public of the nature
of the changes.
The recent report prepared by the South Australian Department of Human
Services presents a fairly bleak picture of modern life in rooming houses and
of the current role that rooming houses play in society. The report states:41
The current role of boarding houses is quite different to previous decades when
boarding houses were a major form of ‘decent and respectable’ accommodation for
working men. Boarding houses now provide accommodation for an increasing
number of people reliant on government income support and, in the broader
community, are regarded as a less desirable form of accommodation that provides
residents with an underclass existence.
Some commentators now regard living in a boarding house as a form of
homelessness. Chamberlain and Johnson42 argue that all residents of boarding
houses are in effect homeless due to their lack of housing tenure and housing choice;
and the poor quality of amenities provided which fails to meet community standards
of basic accommodation.
Despite this gloomy assessment, the South Australian Department of
Human Services report concludes that boarding houses are an important
source of affordable accommodation, and that they perform an important
function and part of the housing stock and options in the state. Without an
adequate supply of boarding houses there will be increased pressure on other
forms of low cost and crisis accommodation, including public and community
housing and homelessness services.43 A worrying finding in this regard is that
the available stock of boarding houses in the state has been in rapid decline for
many years, and those that many of those remaining are of a reduced
standard.44 A 1988 study of boarding houses in South Australia reported that
there were at that time 125 boarding houses with 1543 beds;45 the Department
of Human Services study undertaken in 2003 reported that there were 115
boarding houses with an estimated population of 1160.46 This has also been
the experience in Victoria, where the numbers of rooming houses has been
declining since the mid-1950s.47 According to Kliger, this has resulted from a
number of structural and environmental factors, including the gentrification of
the inner city areas, the poor state of repair of rooming houses and the
consequent expense to maintain them, and the lack of desire of property
41
42
43
44
45
Above n 24, at 11.
Above n 25.
Above n 24, at 7.
Above n 24, at 12.
P Heffernan, Review of Boarding and Lodging Accommodation in Metropolitan Adelaide,
Department of Public and Consumer Affairs and Department of Housing and Construction,
Adelaide, 1988.
46 Above n 26, at 23.
47 For example, in the City of Port Phillip these was a loss of 563 rooming houses between
1954 and 1992: see Kliger, above n 27, at 5.
12
(2004) 10 Australian Property Law Journal
owners to act as long-term rooming house operators.48
If boarding houses are to perform a worthwhile housing function in the
twenty-first century, it is clear that many changes and reforms will be
necessary. Appropriate legal reform, as discussed in this paper, in order to
establish a fair and equitable balance between the rights and duties of
proprietors and residents, is an important and unavoidable part of this overall
process.
48 Kliger, above n 27, at 5–7; Power and McKenna, above n 5, at 5.