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VIC Is My Housemate a Tenant or Licensee?

Discussion in 'Property Law Forum' started by Jesse Jukic, 29 July 2014.

  1. Jesse Jukic

    Jesse Jukic Member

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    Hi all,
    I need some pressing advice on whether a housemate is a tenant or a licensee/boarder/lodger. I am on the lease, [housemate] is not. She has lived at the premises for less than 2 months.

    Reason:
    • Premises is non-smoking (She smokes, tobbacco, marijuana, and sometimes harder stuff like crack). Aside from this she abuses other substances and is an alcoholic.
    • Pets, she brought a cat and a parrot which are not allowed. We let that slip under the radar in the beginning but both pets have proceeded to defecate around the house without proper cleaning. Her idea of a cat door (in the middle of winter) is to leave the back door open...
    • She was brought in on the amount of $170 per week + kitty and has since refused to pay any more than $150 per week and any kitty.
    She said initially that unless I let her stay for $150 per week she would move out in a couple of days (I assume it was a threat to let her stay for that or leave me high and dry). As far as I'm aware that creates a binding verbal 2 day notice agreement.

    Immediately after her 'threat' I found someone to replace her and they have paid bond and are ready to move in within 2 days as [housemate] mentioned in her notice period.

    As far as classifying her as a licensee:
    • She has no exclusive room access. the room she sleeps in most and mostly dumps her stuff in has 9 doors on 5 doorways and is commonly used as a thoroughfare.
    • There are no locks on any of those doors.
    • She has no key to the house.
    • There is no tenancy agreement.
    • And she doesn't pay the same amount as the rest of the people living in the premises.
    As far as why I'm having to do this, she said she would give 2 days and be out but since she has started to cling to other people living here and as she is a sex worker she can be very persuasive...

    Would love some indication if I am correct classifying her as a licensee or something non tenant so if push comes to screaming and yelling and throwing plates I know where I stand. She has said she will go quietly but generally speaking she is the kind of person who asks to be left alone of an evening and then hassles you allllll night about a million things just to disturb what you are doing.

    Would be great to know what else I can do under property law to ensure she is seen as a licensee.
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi Jesse,

    The main difference between a lease and a licence is exclusive possession. Was it the intention of both parties to allow her to stay on the property (or room) and to exclude everyone, including yourself and the landlord from entering the room (except under certain circumstances, e.g. to repair damage)? Where a person is entitled to occupy a room in a share house, that person is presumed to be a licencee unless there is evidence to the contrary (e.g. rental agreement).

    Does she have the landlord's consent before moving in? If not, she cannot have a lease. The Residential Tenancies Act disallows a tenant to sub-lease without the landlord's consent. Without consent, even if there is a lease, it will not be valid.

    Given that this tenant does not have exclusive possession of any room, she has no key to the property, and I assume, the landlord has not consented to her staying, she does not have a lease with you, or the landlord.
     
  3. Iman

    Iman Member

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    Me and my wife are international students living in a share house with 3 other international people. Near 2 months ago when we have 1 of our friends (Uni lecturer) as a guest, one of our housemate asked me to force my guest to leave the house because she and may be another housemate are not happy to see him (without any specific reason).

    This guy was our guest before that and he did not make any damage to property and did not have any bad behavior with others. Usually we used to go to the balcony because we did not want harm any body. When I asked the reason she told me that you can invite guest just one time in a week and shuold inform all of us before that because we are not happy to see your guest without notification.

    In contrast, she had her partner as a guest for 2 weeks in our property and we did not say any thing to her in that time. There is no other additional rule about having guest in our contract.

    I think based on ACT law, we have "exclusive possession" in our property, please kindly let us know about our rights and the our action.

    Regards
     
  4. Sarah J

    Sarah J Well-Known Member

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    Hi Iman,

    First, did you sign a lease with the landlord?
    Second, if so, what does the tenancy agreement say about guests?
    Third, is the landlord the one who has a problem with your guest, or is it other tenants?
    Finally, does the landlord have council approval to lease out their house for so many people? There may be a problem with whether or not the landlord can actually lease rooms to so many people (4+). Does the landlord live in the house?
     
  5. Iman

    Iman Member

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    3 of these people rented a house from agency and after that we joind the house and we have formal lease contract with these people under agency agreement. So owner dose not leave with us and non agency and landlord did not have problem with guests. Also there is no rule about guest in the lease agreement. Just our housmates have problem with our guest.
     
  6. Sarah J

    Sarah J Well-Known Member

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    Hi Iman,

    In this case, it seems to be a private dispute between tenants. Unfortunately, there will be times when you encounter unreasonable or difficult house mates. Have you tried sitting down and having a chat with this person? Ask them why they have a problem with your guest, and explain to them that they also have brought guests to the house in the past. It is in everyone's interest to talk this through and understand each other's position.

    If this doesn't work, you could try contacting the landlord, through the agent. Either request they ask the tenant to move, or they let you out of your tenancy agreement so that you and your wife can find a new place to live.
     

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