Boarders and lodgers (or ‘marginal renters’) are renters who pay for the right to occupy residential premises but who not covered by the Residential Tenancies Act 2010.

The Act excludes specific types of premises and types of agreement from its coverage. If you rent in one of the following types of premises, or under one of the following types of agreements, you will be excluded from the Act.

Types of premises:

serviced apartments, hotels, motels and backpackers hostels
club premises used to provide temporary accommodation
premises used mostly for the purpose of trade, profession, business or agriculture
residential colleges in educational institutions (with some exceptions).

Types of agreement:

agreements under which a person boards or lodges with another person (e.g. in a private home)
certain agreements to occupy refuge or crisis accommodation funded under certain government programs
share-housing arrangements where a person sub-lets part of a premises to another without a written tenancy agreement.

Unlike tenants, boarders and lodgers do not have the right to exclusive occupation of the premises – the landlord retains ‘mastery’ over the premises.

Boarders usually get meals as part of their agreement whereas lodgers do not.

Renting in a boarding house

If you rent a room in a boarding house, whether you are a boarder/lodger or a tenant will depend on how much control the landlord (or live-in manager or caretaker) has over the premises.

You are likely to be a tenant rather than a boarder/lodger, if you:

have exclusive access to your own room (no-one else uses your room and you can lock it)
do not get meals, linen, or cleaning as part of your agreement
have your own cooking facilities
do not have house rules enforced.

The Consumer, Trader and Tenancy Tribunal (CTTT) can decide whether you are a tenant or a boarder/lodger:

if you claim rights as a tenant at the CTTT in a dispute with your landlord, or
if your landlord evicts you (or threatens to) and you challenge this in the CTTT.

If the CTTT decides it has jurisdiction to handle the matter then you are a tenant. If not, you may be a boarder/lodger.

Contact your local Tenants Advice and Advocacy Service (TAAS) for advice.

Paying rent

Ask for receipts when you pay rent. If the landlord will not give you receipts, keep a record such as a diary of cash payments. Or, pay by cheque or money order and keep the stubs in a book.

Bond

If you pay a bond, be sure to get a receipt.

Encourage the landlord to deposit your bond money with NSW Fair Trading (NSWFT). However, they are not required to by law.

Repairs and maintenance

If you live in a boarding house, you may want to contact the local council for help in getting repairs done. Some councils have rules about the minimum size of rooms, fire regulations and ‘registration’ of boarding houses.

If the boarding house does not meet the council’s requirements, the council may order the landlord to do certain repairs. (However, some landlords would close the premises rather than do the repairs.)

If premises are unsafe, the landlord could be held responsible under the law of negligence for any personal injuries caused by them not maintaining the premises.

Write to the landlord/caretaker and tell them that you are concerned for your safety and/or the safety of other residents or guests. Keep a copy of this letter. Get further advice from a Community Legal Centre if you are injured on the premises.

You want to leave

You should give notice to leave in accordance with your agreement. If this is not specified, you should give ‘reasonable notice’ (e.g. if you pay rent weekly, give 7 days notice).

Put the notice in writing and keep a copy. Make sure you take all your belongings with you – if not, it may be hard to get them back.

Eviction

The landlord should give you notice to leave per your agreement, otherwise ‘reasonable notice’ as described above.

If the landlord is evicting you because they want to change the use of the premises (e.g. from a boarding house to a backpacker hostel), contact the planning section of the local council to see if they have permission. If they do not, ask the council to investigate.

The council can also refuse permission if the change of use will mean less affordable housing in the area.

If you are being evicted, contact your local TAAS.

Disputes

If your landlord is a carrying on a business (e.g. you rent a room in a hostel or boarding house), you may be able to apply under the Consumer Claims Act 1998 to the General Division of the CTTT to have your dispute heard. Contact your local TAAS for advice about this.

If your landlord is not carrying on a business (e.g. you rent a room in your landlord’s house), only the courts can deal with your dispute. In most cases, you would have to apply to the Local Court.

A landlord or caretaker may be happy to settle a dispute in conciliation at the CTTT without a full hearing to decide your legal status.

Contacts

Community Legal Centres: phone 9212 7333, www.clcnsw.org.au
Consumer, Trader and Tenancy Tribunal: phone 1300 135 399, www.cttt.nsw.gov.au
Local Courts: phone 02 9287 7888, www.lawlink.nsw.gov.au/lc

January 2011

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Further help

Your local Tenants Advice and Advocacy Service: www.tenants.org.au/contact-us
Other factsheets: www.tenants.org.au/tenants-rights-factsheets
NSW Fair Trading Information Centre: 133 220

The information in this factsheet:
• is intended as guide to the law and should not be used as a substitute for legal advice
• applies to people who live in, or are affected by, the law as it applies in New South Wales, Australia.
© Tenants' Union of NSW