Occupancy Principles in ACT Residential Tenancies Law Peter Sutherland Legal Workshop, ANU College of Law

Overview of This Presentation 1. Residential Tenancies Act 1997 (ACT) 2. The 2004 ACT Occupancy Agreements Reform 3. The ACT “Occupancy Principles” 4. Criticism of the Occupancy Agreement Approach 5. Developments Tribunal has restricted the scope and use of Occupancy Agreements OAs currently are unsuitable for supported housing OAs need to be fully integrated into the RTA as a recognised and respected rental arrangement suited to purpose.

Australian Residential Tenancy Reform Legislation The First Round: 1977 - 1999 SA: Residential Tenancies Act 1978 VIC: Residential Tenancies Act 1980 Rooming Houses Act 1990 NSW: Residential Tenancies Act 1987 Landlord and Tenant (Rental Bonds) Act 1977 WA: Residential Tenancies Act 1987 QLD: Residential Tenancies Act 1994 ACT: Residential Tenancies Act 1997 TAS: Residential Tenancies Act 1997 NT: Residential Tenancies Act 1999

The Second Round of Residential Tenancies Reform 1995 - 2012 Residential Tenancies Act 1995 (SA) Residential Tenancies Act 1997 (Vic) Residential Tenancies Amendment Act 2004 (ACT) Residential Tenancies and Rooming Accommodation Act 2008 (Qld) Residential Tenancies Amendment Act 2010 (NT) Residential Tenancies Act (2010) (NSW) Boarding Houses Act 2012 (NSW) Replaced the RTA 1978 Replaced the RTA 1980 & Rooming Houses Act Introduced Occupancy Agreements Replaced the RTA 1994 and the Residential Services (Accommodation) Act 2002 Coverage of caravans & technical amendments Replaced the RTA 1987 Introduced coverage of boarding houses, including “occupancy principles”

The 2004 ACT Occupancy Agreements Reform The Residential Tenancies Amendment Act 2004 (ACT) introduced into the RTA the concept of "Occupancy Agreements" which complement "Residential Tenancy Agreements" under the RTA. New s 4 provided that the RTA does not apply to retirement villages (as defined), nursing homes and hostels regulated by the Commonwealth, and any premises prescribed under the regulations. All other residential premises are covered by the Act. Agreements and premises previously excluded from RTA coverage are now excluded from being residential tenancies subject to the "standard residential tenancy terms", however they are now mostly caught as "Occupancy Agreements" under Part 5A of the RTA (see s 71C).. Coverage under occupancy agreements now extends to caravan parks, mobile home parks, hotels, clubs, on campus student accommodation, company title arrangements, holiday premises, prescribed premises. The parties can always declare a residential arrangement to be a residential tenancy by express written statement (s 6B). Occupancy agreements are made between a “grantor” and an “occupant” – cf. “lessor” and “tenant” in a tenancy . Tenancies and occupancies must be “given for value”.

“Occupancy Agreements” – s 71C 71C What is an occupancy agreement? (1) An agreement is an occupancy agreement if— (a) a person (the grantor) gives someone else (the occupant) a right to occupy stated premises; and (b) the premises are for the occupant to use as a home (whether or not with other people); and (c) the right is given for value; and (d) the agreement is not a residential tenancy agreement. (2) The agreement may be— (a) express or implied; or (b) in writing, oral, or partly in writing and partly oral. Note After 6 weeks, the occupancy agreement should be in writing (see s 71E (ba)). (3) The right to occupy may be— (a) exclusive or not; (b) given with a right to use facilities, furniture or goods. (4) The person given the right to occupy the premises may be— (a) a boarder or lodger; or (b) someone prescribed under the regulations for this section. Note This Act does not apply to retirement villages, nursing homes, hostels for aged or disabled people or other prescribed premises (see s 4).

The ACT “Occupancy Principles” (d) an occupant is entitled to quiet enjoyment of the premises; (e) a grantor is entitled to enter the premises at a reasonable time on reasonable grounds to carry out inspections or repairs and for other reasonable purposes; (f) an occupant is entitled to 8 weeks notice before the grantor increases the amount to be paid for the right to occupy the premises; (g) an occupant is entitled to know why and how the occupancy may be terminated, including how much notice will be given before eviction; (h) an occupant must not be evicted without reasonable notice; (i) a grantor and occupant should try to resolve disputes using reasonable dispute resolution processes. 71E Occupancy principles (1) In considering a matter, or making a decision, under this Act in relation to an occupancy agreement for premises, a person must have regard to the following principles (the occupancy principles): (a) an occupant is entitled to live in premises that are— (i) reasonably clean; and (ii) in a reasonable state of repair; and (iii) reasonably secure; (b) an occupant is entitled to know the rules of the premises before moving in; (c) an occupant is entitled to the certainty of having the occupancy agreement in writing if the occupancy continues for longer than 6 weeks;

Criticism of the Occupancy Agreement Approach In an Honours Thesis, which discussed the shortcomings of the ACT Occupancy Agreement approach, Margaret Mackellar identified problems, including: . definitional and practical confusion as to who is a tenant and who is an occupant; . some drafting problems in the amendments; . the potential for unfair agreements and house rules; . the continued availability of "self-help" evictions by grantors; . the potential for lessors to opt out of residential tenancy agreements and use less favourable occupancy agreements; . the possibility of a piecemeal and inconsistent approach to occupancy agreements and disputes by the RTT; and . an unwillingness by marginalised occupants to use the tribunal to define and assert their occupancy rights because of the unequal power balance in the relationship with the grantor and lack of protection against retaliation.

Proposed New Occupancy Principles Covering Utilities The former Essential Services Consumer Council proposed: “(da) a grantor is responsible for the cost of utilities services for which there is not a separate metering device so that amounts consumed by each individual occupant during the period of the occupancy cannot be accurately decided; (db) a grantor is entitled to charge each individual occupant a levy to recover the cost of utility services (including any supply charges other than an annual supply charge associated with the supply of water or sewerage). The levy must be based on a fair and reasonable estimate of the likely or actual amounts consumed by each occupant (individually and collectively with other occupants) during the period covered by the levy;”

DISCUSSION 1. The Tribunal has restricted the scope and use of Occupancy Agreements 2. Occupancy Agreements currently are unsuitable for supported housing 3. Occupancy Agreements should be the preferred mechanism for shared housing, particular where an owner is renting out rooms in their house 4. Occupancy Agreements need to be fully integrated into the RTA as a recognised and respected rental arrangement suited to purpose: - With similar rights and obligations to RTAs where appropriate - With differences to accommodate the nature of the tenure, particularly where unrelated adults are sharing common areas