This document discusses the legal classifications of tenants, boarders, and lodgers in student accommodation and outlines some of the key legislation and legal issues related to each. It notes that tenants are covered by the Residential Tenancies Act 2010, while boarders and lodgers are not. Boarding houses are governed by the Boarding Houses Act 2012. Educational institutions that provide student housing are generally exempt from these acts. The document analyzes a past case, Jericho v Carillon Ave, that established how student housing linked to a university can fall under the exemption. It also outlines some of the common issues seen at a student legal clinic regarding student accommodation arrangements and contracts.

1. Tenants, Boarders, Lodgers
Student Accommodation &
Legal Issues
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2. TENANT? BOARDER?LODGER?
RESIDENTIAL TENANCIES ACT 2010
BOARDING HOUSES ACT 2012
AUSTRALIAN CONSUMER LAWS
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3. Control, Dominion, Mastery:
JERICHO
INDICATORS:
• Tenant: often exclusive possession, Arms length relationship,
owner lets go of some control of premises/more latitude to tenant ,
formal arrangement, right to written agreement, owner (servant)
not normally remaining at premises.
• Lodger: historic context: popular 18th/19th Centuries: rent a room
with a household: owner retains control of the premises, lodger must
abide by rules of the household - acceptance of “micro-management”,
level of informality, owner (or servant) remains at premises:
• “One would expect that a lodger was subject to the ways and even the
whims of the household, and suffered as a result of significant
limitation on the liberties appropriate to an arm’s length tenant”
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4. TENANT v LODGER eg:
• Nuisance – eg tenant could have 30 people to party
– provided he ensured they did not create a
nuisance.
• Problem with neighbour: general legal avenues are
available – Application of CTTT, mediation with
Community Justice Centre, may be AVO, injunction
etc
• Personal morality and behaviour (generally) would
be tenants business
 for lodger: strict Rules, limitations, controls,
“Absolute discretion” , morality clauses not normally
part of a tenancy agreement.
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5. TENANTS:
If you a tenant in NSW you are covered by the Residential
Tenancies Act 2010 (NSW) (RTA).
The RTA deals with most legal issues that can arise at the start of,
during and at the end of a tenancy.
RTA does NOT Apply to :
 boarders and lodgers
 occupants of shared households who do not have written tenancy
agreements. If you are moving into a share house where you are not
on the lease, you need to have a written tenancy agreement with a
named tenant to make you a subtenant and therefore covered by the
RTA.
 Certain types of accommodation: hotel, motel, premises ordinarily
used for holiday purposes, any part of an education
institution, hospital or nursing home, any part of a club
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6. MAIN FEATURES OF THE RTA
standard form of tenancy agreement
procedure if the landlord wants to increase the
rent, terminate the tenancy – time frames etc
The Consumer, Trader and Tenancy Tribunal has
power to resolve disputes arising from a tenancy.
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7. TENANTS RIGHTS UNDER THE RTA
right to:
 material facts disclosed before entering an agreement.
 A written copy of the tenancy agreement including the condition
report.
 bond deposited at Renting Services.
 60 days notice in writing of a rent increase.
 Premises that are reasonably clean and fit for cohabitation,
reasonably secure and in a state of reasonable repair.
 Repairs.
 Compensation for urgent repairs if you have paid for them.
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8. TENANCY
• RT Regs sets out standard form of agreement – all
RTA needs to be the standard agreement.
• Under RTA agreement can be written or oral – can have
on handshake (not share housing) NOT
RECOMMENDED .
• landlords responsibile to prepare written agreement – if
they refuse can get order from CTTT. If you provide a
signed agreement and landlord or agent does not sign –
deemed binding from the time they accept rent.
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9. TENANCY
• Additional terms are valid providing they are not
inconsistent with the RTA.
• Following are prohibited:
Tenant must have the carpet professionally
cleaned.
Tenant must take out insurance.
If the tenant breaches they must pay all
outstanding rent.
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10. TENANCY
• Fixed term and periodic „continuing‟
agreements. Most start as fixed term and roll
over into a continuing agreement.
• Under a fixed term agreement – no rent increase
during the fixed term unless agreement sets out
clearly amount and calculation.
• Neither party can terminate in the fixed term
without grounds.
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11. TENANCY
• Bond – must not be more than 4 weeks rent.
• Landlords must deposit with Renting Services
within 10 days of payment. Renting services will
provide you with receipt. If do not receive – give
them a call.
• May be asked to pay rent in advance in addition to
the bond – only allowed to be 2 weeks. Not allowed
to charge additional e.g. For preparation of
agreements.
• Entitled to key to each lock. Each tenant entitled to
a set of keys.
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12. TENANCY - Access
• Landlord can have access in some circumstances
• Notice requirments depending on the
circumstance (Other than emegency)
• If do not comply – breach of agreement by
landlord.
• Agent – act on honestly and fairly – not mislead,
not engage in high pressure tactics –
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13. TENANCY - CTTT
• CTTT – 3 months to lodge application from time
of breach.
• Cannot order payment of money or performance
over $15,000 – must go to court.
• Legal impediments to occupation.
• Breach by tenant – CTTT can make following
orders:
Termination
Compensation
Specific performance
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14. TENANCY
• Landlord cannot respond to alleged breach by:
Locking tenant out.
Seizing tenant‟s goods
Listing tenant on the residential tenancy
databases – only after tenancy terminated and
then only for specific reasons.
 Tenant should not change locks without consent
of landlord.
Tenant should not make alterations to the
property without the consent of the landlord.
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15. TENANCY:
• Do not sublet without consent of landlord –
breach of agreement –
Landlord
Head tenant
Sub tenant
Share housing.
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16. TERMINATION
• Must issue notice.
• Must be in correct form (s223)
• Must be served correctly
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17. GETTING YOUR BOND BACK
• If tenant/Landlord agree on bond complete the claim of
bond form together and both sign.
• If Tenant does not agree: complete the claim of bond
form yourself and submit to Renting Services –
• Renting Services will notify the landlord. Landlord has
14 days to notify Renting Service to hold the money and
apply to CTTT to resolve dispute.
• If landlord applies first, Tenant will need to notify
Renting Services and make application to CTTT to
resolve dispute.
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18. Exemption: RT Regulation 2010 Residential
colleges and halls of residence in educational institutions
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Residential premises used, or intended for use, principally as a residential college or hall
of residence for students of an educational institution are exempted from the operation
of the Act if:
(1)
(a) they are located within the institution, or
(b) they are owned by the institution, or
(c) they are provided for that use by a person or body that provides the
premises under a written agreement with the institution to provide
accommodation to students of the institution.

19. Reg 20 cont:
2) Despite subclause (1), any part of residential premises referred to in that subclause is not exempt
from the operation of the Act if:
(a) the landlord and tenant agree in writing that the part of the residential premises
is to be subject to the Act, or
(b) allocations for the part of the residential premises have been applied for, or
provided, under the National Rental Affordability Scheme Act 2008 of the
Commonwealth.
3) Subclause (2) (b) ceases to apply to a part of residential premises for which an application for
allocations has been made if the application is withdrawn or is unsuccessful.
(4) In this clause: educational institution means premises used for education, being:
(a) a school, or
(b) (b) a tertiary institution that provides formal education and is constituted by or under an
Act
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20. Note also s 8(1) c ACT –
• Act does not apply to:
(8)1C an agreement under which a person
boards or lodges with another person
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21. JERICHO v Carillon Ave P/L (Tenancy) [2005]
NSWCTTT 514 (5 August 2005)
Note: case relates to 1997 version of Residential Tenancy Act but is still relevant and
instructive as current act has maintained the exception
EXEMPTION to EDUCTIONAL INSTUTIONS
Facts of Jericho:
University & Independent Comp. managing accommodation
- No right for V/Chancellor to intervene in internal decision making
- CTTT would not define “educational Institution” exhaustively – gave this interpretation:
- “An institution the primary activities of which are devoted to education, in the sense of imparting knowledge
or assisting and guiding the development of body or mind (Cheterman HCA 1923).
- Imparting knowledge…is not limited to face to face “chalk to talk” lecturing or tutorials; it extends to at least
the carrying out of research and the storing of knowledge. Guiding the development of body and mind
extends at least to the creation of an environment susceptible to learning, which would include, for example,
attempting to facilitate the personal work of students (in the sense of, inter alia, homework, preparation of
research papers and revision for exams
- The legislation assumes that educational institutions will include accommodation facilities” (Paras 65-69)
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22. (Jericho)
KEY QUESTION: What is the linkage between an
educational institution and its parts?
CTTT in Jericho – draw common knowledge (Para 70 – 71)
• Can be spread over a number of physical sites (eg different campuses)
: Co - location or even close location not essential , may be
indicative
• Can be spread over non-physical sits - On-line seminars
• Must include ancillary facilities - not direct/indirect imparting
knowledge - but - essential part of the imparting of knowledge
• Not formal teacher/student setting: education arises from discussion
and interaction between students
• RE: University: “relevant institution consists of the
Corporate form of the university (entity whose seal is put on
contracts) together with such of its servants, agents,
partners, assets and instruments as are not too distantly
removed from its repository of skills and knowledge) and of
course , its students,
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23. (Jericho) FINDING:CTTT has no Jurisdiction:
Accommodation falls within Exemption
“Educational Institution”
• In the course of providing accommodation, it provides a
network of supporting and regulatory mechanisms
devised to facilitate student life. (Para 96)
Spectrum: A flat in which a university student
resides owned by an independent private landlord is
not part of an educational institution. At the other end
of the scale, student housing located on campus and
directly owned by the university and directly governed
by university officers clearly is. (Para 97)
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24. Boarding House ACT 2012 (BHA)
• Relates to : boarders of registrable Boarding houses
• “proprietor / resident / occupancy “
• Purpose : “Delivery of quality services to residents of
Registrable boarding houses and promotion and
protection of the wellbeing of such residents”
• definition of “Registrable Boarding House”: (s9)
General Boarding House:
▫ Provides beds
▫ For a fee or reward
▫ For use of 5 or more residents (not including
property/manager)
• Register of boarding Houses (s12-15) - available on
CTTT website – (some of the information)
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25. Key Aspects: Occupancy Principles:
schedule 2
• Clean, reasonable state of repair
• Reasonably secure
• Boarder must know the rules before moving in
• Penalties for breach of rules PROHIBITED
• Right to quite enjoyment
• Inspections for repairs
• Right to 4 weeks notice before occupancy fee increased
• Conditions re utility charges
• Security Deposit – must not exceed equivalent to 2 weeks
occupancy fee
• Repayment of security deposit within 14 days
• Right to Information regarding Termination (how/why/notice period)
• Notice of Eviction – reasonable notice
• Resident must be given written receipts
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26. Other aspects
• Accommodation must be compliant with
Occupancy rules
• Proprietor must ensure agreement is in writing
– though this does not mean that if not in
writing not enforceable –
• Council Inspections: “Initial Compliance
Check (s16) & Powers of Inspection (s18)
• CTTT to resolve disputes
• Guide – has been produced for Local Council –
available online about their role in BHA.
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27. Exception: definition
• Definition of General Boarding House does
not apply to [s5(f)]:
• “A government school or registered non-
government school within the meaning of the
Education Act 1990 or any other premises that
are used by an educational body to provide
accommodation for its students”
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28. Are the Exemptions necessary?
- Are the expectations onerous?
- Are there practical difficulties?
Can opt in to RTA & BHA - for example why not
adopt the “occupancy principles”??
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29. Not Tenant not a Boarder?
• CTTT will not have jurisdiction - under RTA or
BHA to determine any dispute
• Gap – difficult when things go wrong – Students
don‟t think about these things before – only
after.
• Consumer laws or maybe general contract law
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30. Australian Consumer Laws - CTTT
• Consumer” and “Carrying on a Business”: onus on
landlord to establish not a business.
• Reasonably fit for the purpose
• And of a quality and level of safety that is reasonable to
expect for the price being paid
• Guarantee on services:
Be provided with acceptable care and skill or technical
knowledge
And taking all necessary steps to avoid loss and damage
Be delivered within a reasonable time when there is no
agreed end date
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31. EXPERIENCE FROM STUDENT LEGAL CLINIC
issues and observations regarding student
accommodation (generally)
• Vulnerability/ naivety of International Students
• Our Advice at Clinic – ranged from legal to parental type advice –
not always a legal issue.
• Both sides: Difficulties with Students in relation condition reports
etc - damage or lack of general cleanliness - as well as difficulties in
relation to the provision of poor /unsafe living environments
• Confusing Contracts: Tenant? Boarder? Lodger? Mixing up
terms/Agreements
• Access issues/Barrier‟s for International Students
• Cost Barrier‟s for students generally – in relation to all forms of
legal remedies (letter writing, CTTT, Local Court (small
claims/general div)
• Difficulties with private facilities – boarders / lodgers (pre Boarding
House Act)
• Need to foster relationship with Council
• No assistance sought or complaint re: University accommodation.
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