Residential Tenancy - boarding agreement - intention to create legal agreement

Residential Tenancies Act 1995 s 5, s 69, s 97, s 97A, s 97B and s 97C

Street v Mountford [1985] UKHL 4; (1985) 2 WLR 877

Noblett v Manley (1952) SASR 155

Frieze v Unger [1960] VicRp 38; [1960] VR 230

1. This is an application seeking return of goods.

Issue 1: Is there a residential tenancy agreement?

1. The first issue for me to determine is whether or not the Tribunal has jurisdiction to deal with this matter under the Residential Tenancies Act 1995 (the Act).
2. The parties agreed that:-
   • They signed a "room board agreement";
   • The agreement commenced on 14 April 2016, was initially for a fixed term which expired on 13 October 2016 and Ms Hier remained in the property until 16 September 2017;
   • The terms of the agreement were that Ms Hier would pay rent of $130.00 per week;
   • The agreement relates to a transportable home located at the rear of the property at 5 Kulta Street Brahma Lodge;
   • The transportable home is entirely self-contained with a separate entry, its own laundry, bathroom and kitchen and is referred to by the parties as the "granny flat".
3. Mr Hier submitted that the agreement between the parties is not a residential tenancy agreement because it is a boarding agreement.
4. Section 5(1)(b) of the Act states that the Act does not apply to an agreement under which a person boards or lodges with another.
5. In general terms, in order for a person to be a tenant under a residential tenancy, that person must have exclusive occupation of that part of the property being rented by them.[1]
6. Where the owner of the property retains possession and control over the property, and provides residential accommodation to another person in return for payment, the presumption is that the occupant is a lodger.[2]
7. Where the owner of the property continues to live in it, the presumption is that the occupant is a lodger and not a tenant.[3]
8. In this case, the parties agreed that the granny flat was secure, the tenant had exclusive occupation of the granny flat and the granny flat was self-contained with its own separate entry. In these circumstances I am satisfied that the proper characterisation of the arrangement between the parties is that it is a residential tenancy agreement under the Act.
9. In deciding whether or not this is a tenancy agreement in a dispute such as this, the fact that the written agreement signed by them has a heading "Room board agreement" is irrelevant. It is the actual nature of their rights and obligations which will determine the true nature of the legal relationship between them.

Issue 2: Is the arrangement between the parties a legally binding one?

1. The second issue for me to determine is whether or not there is a binding legal agreement between the parties. The parties are father and daughter. One of the requirements for a contract to be enforceable is that the parties intended to create a legal relationship. Where the parties are related, the presumption is that the parties do not generally intend to create a legal relationship however, that presumption can be rebutted by evidence to the contrary.
2. In this matter, the parties have attempted to document their agreement in writing, the tenant agreed to pay rent and for some of the time she did so. I am satisfied from these factors that the arrangement between the parties is a legally binding agreement.

1. At the hearing the tenant gave evidence that she had vacated the property on Saturday 16 September 2017 and she has no wish to return to the property to reside there, however she wishes to have an opportunity to return to the property to retrieve her possessions which include:-
   • Kitchenware - 2 crockery sets
   • A cutlery set
   • Appliances such as a fondue set and a blender;
   • A sofa couch
   • A painted table
   • A rug
   • A purple bean bag
   • 2 pillows and some toys
   • 2 quilts
   • A wedding dress.
2. Sections 97, 97A, 97B and 97C of the Act govern the manner in which abandoned goods are to be dealt with by a landlord.
3. After some discussion between the parties it was agreed that the landlord will store the tenant's belongings at the property until 5.00pm on Friday 29 September 2017, the tenant will give the landlord 24 hours' notice by text message that she wishes to attend at the property to retrieve her possessions and the landlord will allow the tenant access to the property between the hours of 9.00am and 5.00pm on the following day so that she can retrieve her belongings. I will make orders accordingly.

Issue 4: Other aspects of the dispute between the parties

1. During the hearing the landlord claimed that the tenant was in arrears with her rent and she had failed to leave the property in a reasonable condition and reasonably clean when she vacated. If the landlord wishes to make his own application for compensation against the tenant then he may do so. However as I mentioned at the hearing, before doing so the landlord may wish to consider his position as he has agreed that he unlawfully evicted the tenant which is an offence under s 95 of the Act, and which would have also impacted on the tenant's ability to return the property in a reasonable condition and reasonably clean as required by s 69 of the Act.

1. The landlord must store any possessions of the tenant (which are currently at the property) and including any mail delivered for her before she retrieves her possessions, until 5.00pm on Friday 29 September 2017 and after then he is at liberty to deal with those items in accordance with the abandoned goods provisions under the Act.
2. The tenant may provide the landlord with 24 hours' notice by text message that she requires access to the property to retrieve her belongings. Upon receipt of that message, the landlord must provide the tenant with access to the property (and to all of her possessions), between the hours of 9.00am and 5.00pm on any day before Friday 29 September 2017 except Saturday 23 September 2017.
3. The tenant may only use the access provided in accordance with Order 2 for the purpose of retrieving her belongings from the property and once she has retrieved her items from the property, she must leave the property immediately.

[1] Street v Mountford [1985] UKHL 4; (1985) 2 WLR 877.

[2] Noblett v Manley (1952) SASR 155.

[3] Frieze v Unger [1960] VicRp 38; [1960] VR 230 in which Sholl J decided that the exclusive use of a bedroom was consistent with the owner's right to control the room.