Share Housing: A Case for Certainty and Stronger Protections

Nicole is a long-standing Tenant Advocate.

Recent reforms to NSW renting laws — including the end of “no grounds” evictions and better rights for tenants with pets — have been widely welcomed, but for the growing number of people who have no option but to live in share style housing, there may be little to celebrate.

While share housing can be an affordable alternative, legal protections for this group of renters are confusing, limited, and in some cases, non-existent. Tenant advocates across the state regularly speak with people living in shared houses who are unsure of their legal status or unaware of how few rights they may actually have.

Traditionally, share housing involved friends or acquaintances signing a tenancy agreement as co-tenants. Increasingly, however, we have seen the rise of head tenants and more business-like arrangements — such as boarding houses and per-room agreements — where landlords or operator seeks to maintain control of the premises. Many of these agreements fall outside the Residential Tenancies Act, and even those covered by the Boarding Houses Act (for properties with five or more beds) benefit from limited protection.

The NSW Boarding Houses Act was introduced in 2012 and aimed to provide for basic rights and responsibilities for residents, including occupancy principles that provided guidelines regarding house rules, information about how rent can be increased, and how the operator or resident might end the agreement... but the situation for residents of Boarding Houses has not been greatly improved because ultimately there is no requirement for an arbitrator such as the NSW Civil and Administrative Tribunal (NCAT) to rule on whether an eviction notice has been reasonably given and whether the reasons justify the loss of housing. Boarding houses are generally recognised as a form of homelessness because the tenure rights are not strong enough to give a basic level of stability. We’ve seen in the evolution towards ‘co-living’ that providers can successfully use residential tenancy agreements which ensures both a greater level of security and the oversight of the Tribunal. 

The outcome for residents of Boarding Houses has been the risk of falling into more severe forms of homelessness if they seek to assert any of the rights set out in the Boarding Houses Act.

Renters without the protection of either Act, for example sub tenants with no written agreement, boarding style agreements and those living long term in hotels and motels can find themselves being displaced into more precarious housing situations, loss of money paid in advance and loss of goods as they do not have access to protections or processes via NCAT that other types of tenure do. 

In the Hunter Region, particularly Maitland and Newcastle, advocates are reporting an increase in per-room rental models. At first glance, this might seem like an innovative response to the housing crisis. For those on Residential Tenancy Agreements (of which many are) their rights and responsibilities are clear and enforceable however for those without tenancy agreements, or agreements that seek to exclude coverage of the Residential Tenancies Act, it appears that some owners and managers are exploiting desperate renters through unconscionable practices.

Renters seeking advice from Tenants Advice and Advocacy Services in relation to per room agreements that operate at the exclusion of the Residential Tenancies Act have reported having to pay unregulated application fees, arbitrary fines for using electrical appliances in their rooms, being subject to changeable charges for utilities, total lack of privacy, and eviction with little warning and for reasons like not having a shower today, or being sick. 

Journalist Gabriel Fowler of the Newcastle Herald has documented a concerning practice: an organisation providing per-room accommodation to vulnerable individuals, including NDIS participants, under agreements that explicitly state they are not tenancy agreements. The Herald’s expose painted a worrying picture: a resident was evicted the day after speaking to the journalist, others were given just 24 hours’ notice to relocate, some residents reported their rooms in existing houses were altered by installation of walls and wooden cabinet ‘pods’ stacked to accommodate more people, current and future residents stripped of privacy and dignity. Fowler’s reporting outlined real stories from residents of these properties and reveals the human cost of this legal grey area. 

Local councils have occasionally intervened where premises may have been illegally altered, but the systemic problem remains: In an affordable housing crisis, many people looking to secure a roof over their head are forced to live in unstable and potentially unsafe situations and our renting laws have not kept up. 

The examples in the Hunter provide a clear indicator that a broad range of renters are now locked out of tenancy protection. We need to develop a strong legislative framework that ensures that the exploitative practices we see are stamped out.

In establishing any new framework, we must look at the lessons we have learned from the past, in this case, the Boarding Houses Act. The NSW Government in their 2019 report from the 5 year review of the Boarding Houses Act recommended that the scope of the Act be widened to cover all residents who rent in shared accommodation. There have been lengthy delays since the report was finalised but the NSW Rental Commissioner is currently consulting stakeholders on a new Shared Accommodation Act. In establishing legislation to broaden coverage for people living in shared accommodation it is critical that we do not water down any protection currently available via the Residential Tenancies Act. 

The key limitation of the Boarding Houses Act has been the lack of an independent arbiter on eviction and clear restrictions on the reasons for eviction. There is little utility in legislative protection that results in more severe homelessness when you seek to assert it.