In general terms anyone who has a residential tenancy agreement is entitled to the protection of the Residential Tenancies Act, although the Residential Tenancies Act does not apply to any residential tenancy agreement where the tenant is a boarder or lodger (s. 5 (2). The Act defines a "residential tenancy agreement" as
any agreement, whether express or implied (written or verbal) , under which any person (the owner) grants to any other person for valuable consideration (for example, rent) the right to occupy, whether exclusively or otherwise, any residential premises, or part of residential premises, for the purpose of residence.
See the sections on The Residential Tenancies Act and The Tenancy Agreement for more information.
This is not an easy question to determine. Many factors may be relevant and it is important that all these factors are considered in reaching a conclusion. A person may think they are a boarder or lodger, but not be, and it will be important for a person to seek advice if they have any doubt about their status.
Generally speaking, a "lodger" is someone who occupies part of premises but whose occupation is subordinate to, or in some degree under the control of, the owner. The owner either also lives there, or at least retains possession over the house generally (or at least the front door). The presence of the lodger, even to the extent of having exclusive possession of part of the premises, does not prevent the house generally being in possession of the owner (Stroud's Judicial Dictionary 4th Edition, 1972).
So, if the owner retains "general control" over the premises and where the owner lives in another part of the premises; it may be presumed, in the absence of evidence to the contrary, that the occupier is a lodger. Even where the owner does not live at the premises, there also appears to be a presumption that an occupier is a lodger if the owner retains control of the outer door of the building, or if s/he provides other services such as cleaning the room or making the bed (Bradbrook, McCallum and Moore, 1983, Residential Tenancy Law and Practice - Victoria and South Australia, Ch. 4).
A "boarder" is someone who apart from being a lodger, also receives meals.
A "boarder" is someone who apart from being a lodger, also receives meals. There may be an issue as to whether the amount of food a person receives is enough for the person to be classified as a boarder. It has been said that "board" lies somewhere between an early morning cup of tea, and bed and breakfast.
However, the question to ask is probably whether the food received is "(not) so trifling in value or in amount as to be negligible". Further, it is important to remember that, even if the food received is insufficient for the person to be classified as a boarder, s/he may still be a "lodger" and therefore not covered by the Act (Bradbrook, McCallum and Moore, 1983, Residential Tenancy Law and Practice - Victoria and South Australia, Ch. 4).
The definition of a "lodger" and "boarder" are not settled or definite and applying them to a person's situation may often be difficult. In attempting to determine whether or not a person is a lodger or a boarder, there are some useful questions which can be asked:
This list is not comprehensive and the answer to any of them will not necessarily mean that a person is/or is not a boarder or a lodger.
It is usually advisable to first try and resolve a dispute by dealing directly with the other party. One of the agencies listed in the Community Contact section of this Manual may be able to help you resolve a dispute. If you and the other party can not resolve the dispute it is suggested you seek advice on your situation and your options for taking action.
Typically, a tenant will want to be covered by the Residential Tenancies Act and, as long as they can establish that they have a "residential tenancy agreement" as defined in the Act, a person may wish to bring a claim and seek the protection of the Act. It is up to another party in the Court hearing to raise the issue of whether or not the person is actually a boarder and lodger and to prove this to the Court on the balance of probabilities. The Court may also find on the evidence (again on the balance of probabilities) that the person is a boarder and lodger and therefore not entitled to protection. If a tenant makes a claim under the Residential Tenancies Act and the Court rules that the tenant is a boarder or lodger, their application will be dismissed. If you think you may be a boarder or lodger, it is best to seek advice before commencing proceedings.
It may be in a tenant's interest to argue that they are covered by the Residential Tenancies Act even if the issue of them being a boarder or lodger is likely to be raised.
The protection offered to boarders and lodgers is not as extensive as that offered to tenants under the Residential Tenancies Act. If a dispute arises, a person who believes they may be a boarder or lodger will need to seek advice about their status and their rights before deciding on the course of action which they should take. You are likely to have some sort of legal remedy even if you are a boarder or lodger and it is important to check this out.
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