NSW Exclusive Posession

[Jaywoo220]

Can multiiple people have 'exclusive posession of land'? Like the owners and people living in the house with them?

 

[Docupedia]

Owners - yes (subject to lease). Tenants on a lease - yes. People living at the premises who aren't named tenants - no.

'Exclusive possession' is formed on the right to occupy, not who does actually occupy - as afforded by the law. It is most often used in terms of a lease, so I'll frame the explanation that way (and is often used to contract a 'lease' versus a 'licence').

When you lease a property the owner grants a contractual right to the tenant to occupy the premises subject to (a) the terms of the lease and (b) the law. That contract creates and gives the right to 'exclusive possession'; along the lines of 'as long as you comply with the terms of the lease, you will have exclusive possession of the premises for the period of x months'. Exclusive possession in basic terms gives you the right to exclude other people from the property, unless they have an overriding right to be there or the consent of the holder of exclusive possession. This includes the owner of the property - unless the owner is properly exercising their rights under the lease and the law (e.g. allowable inspections at reasonable times) then the tenant can legally require them to leave.

Like all contracts this brings in the concept of 'certainty' (specifically, certainty of parties). On one side is the owner - being the registered proprietor of the land - which gives us certainty as to who they are. On the other hand, there are the named tenants in the lease - giving us certainty as to who they are. While other people may be entitled to reside there, with or without the express consent of the owner, those 'add on' people are not parties to the contract (lease): they're not named as tenants in the lease. Subject to an intervening mechanism (e.g. the operation of a law giving them specific rights, or a court ordering the contract be amended to include them as a party) those 'add on' people:
- Are not liable for breaches of the lease;
- Are not liable to ensure payment of rent;
- Cannot enforce the lease against the owner; and, the relevant one here
- Do not get the benefit of exclusive possession of the premises (unless there is a court decision I'm not aware of that gives 'lodgers' and 'boarders' the rights of an exclusive possessor - which is entirely possible).

 

[Jaywoo220]

Thanks Docupedia. That is a great response.

What about a person living with their parents? Would they have a type of 'permissive occupancy' which grants a right to exclusive posessive of the land from others? (except of course they do not have greater property rights than the parent owners).

 

[Docupedia]

Probably, but this gets towards a technical argument that would involve a consideration of common law principles applied to the residential tenancies legislation. I would suspect that it would be somewhat along the lines of the following (as you've hinted at):

Any person with a right to occupy can exclude a person with less of a right to occupy - except where there is a law which interjects.

To explain: An owner has the 'ultimate' right to exclude people from the property. But, where they have granted a lease to someone else then that person's rights overrule those of the owner subject to whatever the lease says; all always subject to what the law has to say. This is the mechanism where, for example, landlords cannot kick tenants out unless the tenant breaches the lease (and sufficient hoops are jumped through). Going downstream from there, a 'permitted occupant' (say, the children of the tenant) should be able to exclude someone with a lesser right to be there (e.g. a tradesperson, a guest) unless:

(a) Someone with a greater right than the permitted occupant contradicts them. Example: Mum and Dad invite someone over. Junior doesn't like this and tells them to leave. Mum and Dad grant permission to stay.
(b) The law allows the person to 'leapfrog' the chain of power because of a general/contracted right to do so. Example: Owner grants exclusive possession to tenants, subject to the terms of the lease and the law. Tradesperson shows up to fix an emergency water leak. Tenant refuses them entry. The landlord relies on an emergency power in the lease to force the tradesperson to have access to fix the leak, because the lease/law allows them to do so.
(c) Similar to (b), the law grants a special right to interject at any point for a specific purpose. Example: Police executing a search warrant.

 

[Jaywoo220]

Thank Docupedia. Really thoughtful and well articulated response.