MAO v XU & ANOR (Residential Tenancies)

[2026] ACAT 29

ACT Civil and Administrative Tribunal|2026-06-15

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ACT Civil and Administrative Tribunal

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2026-06-15

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Source: the ACT Civil and Administrative Tribunal (www.acat.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MAO v XU & ANOR (Residential Tenancies) [2026] ACAT 29 RT 195/2026 Catchwords: RESIDENTIAL TENANCIES – occupancy agreement or residential tenancy agreement – whether room unsafe or not secure – where grantor did not disclose possible sale of the premises – whether contract rescinded due to misrepresentation by silence – whether misleading and deceptive conduct under the Australian Consumer Law – whether terms of the agreement between the parties inconsistent with occupancy principles.

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 10, 22P Acts Interpretation Act 1901 (Cth) s 15AB Australian Consumer Law ss 18, 237, 243 Fair Trading (Australian Consumer Law) Act 1992 s 11 Legislation Act 2001 ss 132, 138, 139, 140, 142 Residential Tenancies Act 1997 ss 6A, 6B, 6D, 6E, 8(1), 9, 46, 46B, 71C, 71CA, 71EA, 71EB, 71EC, 71ED, 71EE, 71EG, 71EH, 71EK, Sch 1, ss 81, 81A Residential Tenancies Act 1997 ss 6A, 6E, 6F, 71C, later amended by Residential Tenancies Amendment Act 2020 (No 2) Residential Tenancies Amendment Act 2020 (No 2) Subordinate Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020 r 70

The applicant first contacted the respondents on 21 January 2026 about renting a room they had listed on an app called CBRLife. The room is described as one of three bedrooms in the downstairs part of a residential house in a Canberra suburb. She had a virtual inspection of the room on 24 January 2026 via a WeChat call with the first respondents. A copy of the agreement was sent to the applicant on 31 January 2026. On 2 February 2026, the applicant was told via text message that she could sign the agreement when she moved in and was asked to pay a security deposit to secure the room. The applicant paid the security deposit of $1,120 later that day.
The applicant arrived at the property on 6 February 2026. In material provided to the Tribunal, the applicant claimed to have spoken to the second respondent at the time she moved in, who told her about the respondents’ intention to sell the property and the need for her to leave the house during inspections. The following day, the applicant messaged the first respondent to say that she no longer wanted to stay at the property. She had intended to move out immediately but asked to stay at the property for a few days as she was feeling unwell. Several messages were exchanged between the parties over the next few days.
The applicant vacated the property on 9 February 2026. She stated that she had paid $185 to stay at a friend’s house until 13 February 2026 when she moved into accommodation at the ANU.
The applicant provided a number of reasons for vacating the property at the time which were not claimed at the time of the hearing. At the hearing she claimed that she had vacated the property because the window was broken and could not be closed or secured. She stated that there were several large cracks in the walls that hadn’t been visible during the virtual inspection. She also claimed that she would not have agreed to move into the property if she had been told that the respondents were intending to sell the property. The applicant offered to pay three days rent for the time she had spent at the property, but requested that remainder of her security deposit be returned. At the hearing the applicant also claimed the respondents were liable for the $185 she had spent on emergency accommodation and for the Tribunal filing fee. She also asked for declarations that the agreement between the parties was a residential tenancy agreement, and that the agreement, because of the problems with the room, what she submitted was a misrepresentation by the respondents, and inconsistencies between the terms of the agreement and the requirements under Residential Tenancies Act 1997 (RTA), be declared void from the start of the agreement.. Herein, references to sections are references to sections of the RTA unless indicated otherwise.
The respondents stated that there was no problem with the window or cracks in the room. They stated that they did not know if they would be selling the property at the time the applicant inspected the room, and had only told her when she moved in that they might be selling the property and buyers might be inspecting the property in the future. The respondents submitted that the agreement between the parties was a valid occupancy agreement, and under the terms of that agreement they were entitled to recover rent for the period from when the applicant moved in until they were able to rent out the room again on 6 March 2026. However, the respondents were only claiming three weeks rent.

An occupancy agreement is defined in section 71C: 71C What is an occupancy agreement? (1) An agreement is an occupancy agreement if— (a) under the agreement— (i) a person (the grantor) gives someone else (the occupant) a right to occupy stated premises; and (ii) the premises are for the occupant to use as a home (whether or not with other people); and (iii) the right is given for value; and (b) the agreement is 1 of the following: (i) except if section 6B applies, an agreement to occupy premises in the grantor’s principal place of residence; (ii) except if section 6B applies, an agreement to occupy premises in a residential facility associated with, or on the campus of, or provided under an arrangement with, an education provider; (iii) an agreement— (A) to exclusively occupy a sleeping space in a building with other sleeping spaces with related access to shared facilities or provision of domestic services; and (B) that states it is an occupancy agreement; (iv) an agreement— (A) for emergency accommodation for people in crisis; and (B) that states it is an occupancy agreement for emergency accommodation for people in crisis; (v) an agreement— (A) to occupy premises provided under a housing support program; and (B) that states it is an occupancy agreement for a housing support program; (vi) an agreement— (A) to occupy premises because of membership in a club or other entity; and (B) that states it is an occupancy agreement; (vii) except if section 6B applies, an agreement to occupy— (A) premises provided by the grantor in a residential park; or (B) a site in a residential park, for the purpose of the occupant placing a manufactured home or a mobile home on the site; (viii) an agreement prescribed by regulation. Examples—par (b) (iii) (A) a bedroom in a boarding house, a bed in a dormitory-style room Note This Act does not apply to nursing homes, hostels for aged or disabled people or other prescribed premises (see s 4). (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 71EA (1) (b)). (3) The right to occupy may be— (a) exclusive or not; (b) given with a right to use facilities, furniture or goods. (4) In this section: housing support program means a program funded by the Territory under which accommodation is provided for people who— (a) are homeless or at risk of homelessness; or (b) will receive welfare or health support or services when using the accommodation. Examples—par (b) alcohol and drug addiction services shared facilities, in relation to premises, means areas related to the premises, provided for shared use by people occupying those and other premises. Examples shared bathroom and toilet, laundry, kitchen sleeping space, in a building, means— (a) a bedroom; or (b) a bed in a room with other beds.
Section 71CA excludes from the definition of occupancy agreements any agreement by a tenant to give a right to occupy the premises. Like residential tenancy agreements, agreements under a mortgage, adjacent premises owned by a company and occupied by tenants who control the company, holiday rentals, and related to the sale or purchase of the premises are also excluded.
Both occupancy agreements and residential tenancy agreements involve a right to occupy stated premises to use as a home which is given for value. However, an occupancy agreement must fall into one of the types in section 71C(1)(b). In particular for this matter, the types include an agreement to exclusively occupy a sleeping space in a building with other sleeping spaces with related access to shared facilities or provision of domestic services which states it is an occupancy agreement (section 71C(1)(b)(iii)). If the agreement meets the definition of an occupancy agreement, it cannot be a residential tenancy agreement (section 6A(1)(b)).
An occupancy agreement is taken to contain the occupancy principles as in force from time to time. Any rules about occupying the premises or additional terms are void if they are inconsistent with the occupancy principles, the RTA or another territory law (section 71E). Prior notice has to be given for any occupancy rule and changes to occupancy rules, and an occupant may terminate an occupancy agreement with two weeks’ notice after receiving notice of a change to the rules (section 71EG).
The occupancy principles are set out in section 71EA. They include that an occupancy rule must be reasonable and proportionate to the outcome sought by the imposition of the rule (section 71EA(f)), and an occupant must not behave in a way that detracts from the rights of others (including another occupant) to live and work in the premises in a safe environment, free from harassment or intimidation (section 71EA(k)).
There are requirements for a condition report to be provided a day after the occupant takes possession (section 71EB). Security deposits are restricted depending on the length of the occupancy agreement (section 71EC) but there are similar requirements relating to lodgement and deductions (sections 71ED and 71EE).
Like a residential tenancy agreement, an occupancy agreement does not have to provide for an exclusive right to occupy the premises. Section 71EH requires the grantor, as far as reasonably practicable, to give the occupant 24-hour access to the occupant’s part of the premises and a toilet and bathroom as well as access at reasonable times to the shared facilities. There are also less restrictions on the grantor entering the premises (section 71EK).
The occupancy agreement must state when it may be terminated and how much notice is required, but those circumstances must be reasonable having regard to the nature of the occupancy (section 71EK(2)). Otherwise, an occupancy agreement can only be terminated if the parties agree or a party has breached an occupancy principle or the agreement and the breach justifies termination (section 71EK(3)). The agreement between the parties
The agreement between the applicant and the respondents is described as a residential occupancy agreement. It describes the premises as the downstairs portion of a 4-bedroom house, the room to be occupied as bedroom 1 with specified furniture, and various shared areas and facilities. It is expressed to commence on 6 February 2026 and end on 25 June 2026.
The agreement grants the occupant a licence to occupy the room and access the premises. Some aspects of the agreement are consistent with a residential tenancy agreement but not an occupancy agreement. For example, the agreement provides for a deposit of four weeks’ rent. Some aspects are possibly inconsistent with both residential tenancy or occupancy agreements, such as there is no provision for the deposit to be lodged with the Territory, for the occupant to provide a copy of the incoming condition report, restrictions on the length of time a guest can stay and allowing the Grantor to introduce additional clauses during the course of the occupancy agreement without notice or providing for the occupant to leave as a consequence.
There are also clauses which may arguably be inconsistent with a residential tenancy agreement, including obligations on the occupant to comply with lawful notices and reasonable directions from the Grantor, not to use the room for commercial activities, restrictions on use of air-conditioning and additional heating or use of candles and not to engage in inappropriate behaviour. There are requirements to maintain the shared facilities, including avoiding drain or sewage blockages, storing household rubbish, and participating in the house cleaning roster or pay $20 extra per week. Breach of any of these obligations can lead to immediate termination of the agreement. The grantor has a right to enter the room at all reasonable times on 24-hours notice. The agreement expires on the End Date and the occupant is not entitled to an extension or renewal.
There is explicit provision for selling the property, with occupants required, on two weeks’ notice, to keep rooms clean and to vacate the house for one or two inspections per week during an open house inspection period which is described in the agreement as normally lasing about 4 weeks.
The agreement also provides for the grantor to be able to terminate the agreement if an amount due is unpaid for 7 days. There is no provision for the occupant to vacate early; they will remain liable to pay rent until the end date unless a replacement agreement with another occupant is entered into.

The applicant submitted that it was important to go beyond the terms of section 71C to consider their purpose and context. The current form of section 71C is substantially the result of amendments by the Residential Tenancies Amendment Act 2020 (No 2) (Amendment Act) which relevantly commenced on 3 March 2021. The revised explanatory statement for the Residential Tenancies Amendment Bill 2020 describes the amendments as clarifying “the difference 3 between an occupancy agreement and a residential tenancy agreement”. In describing the compatibility of the Bill with the right to equality and non-discrimination, the revised explanatory statement states: Under the amendments, a presumption will remain in favour of a residential tenancy agreement in a range of circumstances. Under the proposed definitions, occupancy agreements arise where the agreement seeks to achieve a clearly defined outcome such that any differential treatment between occupants and residential tenants will be based on reasonable and objective criteria. Of further relevance to the proportionality of the measure, is the ability of parties to an agreement that purports to be an occupancy agreement, but that appears to be more in the nature of a residential tenancy agreement, to challenge its status in the ACT Civil and Administrative Tribunal (the Tribunal).
The revised explanatory statement outlines the clause which inserts the amended section 71C as follows: Clause 22 Section 71C (1) This clause inserts a new definition of an occupancy agreement into the RTA. The policy intent is that people should be residential tenants unless there are strong policy reasons not to recognise a tenancy. The definition provides a more functional approach centred on those policy reasons to distinguish a tenancy agreement from an occupancy agreement. It will also make it clear that inconsistency with the standard tenancy terms in the RTA 3 Revised Explanatory statement page1 should, in the absence of countervailing reasons, be considered a breach of the landlord’s obligations and not a reason in favour of reading an agreement as an occupancy agreement. The reasons to have an occupancy are: 1. if the person is occupying a room within the grantor’s primary place of residence (where they are the owner-occupier). 2. if exclusive possession interferes with legitimate goals to support vulnerable or at-risk residents, such as those where the grantor is required to provide support or assistance. 3. if restrictions on termination of an agreement interferes with legitimate goals to provide accommodation on a needs-basis. For example, there may be good policy reasons not to grant tenancies in respect of short-term refuge and crisis accommodation: accommodation is needs-based rather than a durable solution that should be offered under alternative forms of agreement. For mid-term stay, the RTA already provides a pathway for declared crisis accommodation providers to terminate a tenancy agreement with four weeks’ notice (section 36(1)[(m)]). 4. if the accommodation is in a residential park; 5. if it is residential accommodation associated with education providers (subject to delayed commencement). The new definition shifts away from category-based classifications of occupancies to an inquiry about the function and purpose of the agreement. If an agreement purports to be an occupancy agreement but does not match the function and purpose of an occupancy agreement, it is intended that inconsistency with the standard tenancy terms in the RTA should, in the absence of countervailing reasons, be considered a breach of the landlord’s obligations, rather than a reason to read an agreement as an occupancy agreement instead (contrary to the analysis in Wicks v Hurst-Meyers Charity [2019] ACAT 92). …
The outline then goes on to specifically discuss the position of dormitories and Boarding houses as follows: Dormitories and Boarding Houses Dormitories and boarding houses are another way for people to reside in the ACT, especially where they have recently relocated and require transitional accommodation or otherwise require lower-cost accommodation. Despite their ubiquity, there is no clear definition of a boarding house or a dormitory, except that they do not constitute a tenancy. New section 71C (1) (b) (iii) proposes to clarify this by describing the function of a dormitory or boarding house: the exclusive use of a sleeping space in a building with other sleeping spaces, with related access to shared facilities or provision of domestic services. In order to satisfy this definition, the agreement must state that it is an occupancy agreement.
Prior to the Amendment Act, the relevant definitions of residential tenancy agreements and occupancy agreements were as follows: 6A What is a residential tenancy agreement? (1) An agreement is a residential tenancy agreement if, under the agreement— (a) a person gives someone else (the tenant) a right to occupy stated premises; and (b) the premises are for the tenant to use as a home (whether or not together with other people); and (c) the right is given for value. (2) The agreement may be— (a) express or implied; or (b) in writing, oral, or partly in writing and partly oral. (3) The right to occupy may be— (a) exclusive or not exclusive; and (b) given with a right to use facilities, furniture or goods. (4) This section is subject to the following sections: • section 6D (Certain kinds of agreements not residential tenancy agreements) • section 6E (Certain people given right of occupation not tenants) • section 6F (Certain kinds of premises mean no residential tenancy agreement). 6E Certain people given right of occupation not tenants (1) A residential tenancy agreement does not include an agreement for the right to occupy premises if the person given the right of occupation is— (a) a party to an agreement entered into honestly for the sale or purchase of the premises; or (b) a boarder or lodger; or (c) a person prescribed by regulation. … 6F Certain kinds of premises mean no residential tenancy agreement (1) A residential tenancy agreement does not include an agreement for the right to occupy premises if the premises are— (a) a caravan or mobile home in a mobile home park; or (b) a hotel or motel; or (c) used for a club; or (d) on the campus of an educational institution; or (e) prescribed by regulation. Note This Act does not apply to nursing homes, hostels for aged or disabled people or other prescribed premises (see s 4). … 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 (c)). (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 by regulation for this section. Note This Act does not apply to nursing homes, hostels for aged or disabled people or other prescribed premises (see s 4).
Importantly, prior to the Amendment Act, the RTA provided that an occupancy agreement was not a residential tenancy agreement. This has now been reversed, with section 6A currently providing that a residential tenancy agreement is not an occupancy agreement. This suggests that the starting point in considering the characterisation of an agreement between the parties is now to ask whether the agreement meets the definition of an occupancy agreement, and if that is answered in the negative to then consider whether the agreement meets the definition of a residential tenancy agreement.
As the revised explanatory statement suggests, the order in which the definitions under the RTA are considered was discussed in Wicks v Hurst-Mayers Charity 4 (Wicks). In that case, one of the issues was whether the agreement between the parties was a residential tenancy agreement or occupancy agreement. The Tribunal stated that: The primary characterisation is that of a residential tenancy agreement. Only if this question is answered in the negative is the further question asked whether the agreement fits the description of an occupancy 5 agreement within the meaning of Part 5A of the RTA.
The Amendment Act means that this position has now been reversed. However, the Tribunal in Wicks went on to say: Initially the Tribunal was inclined to view that the agreement was an occupancy agreement and not a tenancy mainly by reason of the terms within the agreement that were inconsistent with the standard tenancy in the RTA, including the termination clause, the rent clause and the ‘contras’ clause. The alternative constructions were: (a) the inconsistent clauses were of sufficient significance that the agreement when viewed objectively was too far removed from a tenancy; or (b) objectively, the core requirements for a tenancy were present, at least in a practical sense, and the inconsistent clauses were unlawful. 6 In the end the Tribunal was persuaded to the second construction, …
Even though it was not the position ultimately adopted by the Tribunal in Wicks, the case considered the apparent inconsistencies with the standard tenancy terms under the RTA as a reason to characterise the agreement between the parties as an occupancy agreement. As the revised explanatory statement suggests, the intention of the Amendment Act is to make clear that the characterisation of the agreement is to be made on the basis of the respective definitions, starting with whether the agreement is an occupancy agreement. Only once the agreement is characterised as a residential tenancy or occupancy agreement is any inconsistency with the standard tenancy terms or occupancy principles considered.

The characterisation of the agreement cannot be completely separated from an 7 analysis of its terms, however. For the agreement to meet the definition of an occupancy agreement the agreement must state it is an occupancy agreement for certain purposes so as to meet the criteria in section 71C(b)(iii)–(vi). An occupancy agreement must also give someone a right to occupy stated premises for the occupant to use as a home for value (section 71C(1)(a)). Relevantly to this case, the agreement as a whole must be able to be characterised as an agreement to exclusively occupy a sleeping space in a building with other sleeping spaces with related access to shared facilities or provision of domestic services (section 71C(b)(iii)(A)).
The applicant submitted that the definition of occupancy agreement should be read as restricting occupancy agreements to where they related to a bedroom in a boarding house or a bed in a dormitory-style room. This is reflected in the example provided in section 71C(1) and reinforced, the applicant submitted, by the discussion in the revised explanatory statement. The respondent’s premises could not be described as a boarding house and dormitory, when those terms are given their ordinary meanings.
The reference to boarding house and dormitory-style rooms reflects the position prior to the Amendment Act where occupants under an occupancy agreement 8 were boarders or lodgers. The position of boarders and lodgers at common law 9 is discussed in Residential Tenancies Law and Practice in NSW as follows: Boarder and lodgers are a subset of occupant or contractual licencees. Boarders and lodgers have a right to occupy a bedroom (shared or not shared) and to use the common facilities, but they do not have an exclusive right to use their rooms or the common facilities. This the owner/tenant may enter the boarder’s or lodger’s bedroom in accordance with the agreement, and commonly does so to provide cleaning, linen or other services. The boarder or lodger agreement is generally a revocable contractual licence because people have to live in close proximity to each other.

The applicant claimed that the contract should be invalidated for essentially three reasons: the room was unsafe and insecure due to cracking and problems with the window not securely closing; the respondents had failed to warn the applicant that they were selling the property before she signed the agreement; and that the terms of the agreement were inconsistent with the requirements under the RTA. I have concluded that the second and third reasons have merit, but do not agree in the circumstances of this case that voiding the contract is the appropriate remedy in this case.
In reaching these conclusions, I am mindful that the parties did not have the opportunity to prepare witness statements or give extensive evidence, and that the interpretations of the text messages between the parties in the mandarin language provided by the applicant were not certified. I accepted evidence from the applicant and her representative and heard from and asked questions of the respondents at the hearing.
In particular, both parties relied on text messages between the applicant and the first respondent. The applicant moved into the premises on 6 February 2026. The next day she texted the first respondent to say that she had decided to stay at the school dormitory as it was more convenient. She had intended to move out on that day but was not feeling well and so wanted to move out on the following Monday. The respondent texted back to say that they had an agreement and the applicant’s demands were unreasonable. The applicant then texted back to say that living there would not be convenient as she did not have a car and it was not safe to travel to school at night. The applicant also raised the concern about the frequent need to show the room to potential buyers.
The applicant did not raise a problem with the window or cracks until just after midnight on 8 February 2026. That day the respondents replied by saying that they would come visit the applicant after the applicant had recovered from her 17 illness. The applicant responded that she was not planning to rent the room anymore and requested her bond back minus three days’ rent. The respondents asked to discuss the matter before following the dispute process set out in the agreement.

The applicant claimed that she was justified in leaving before the end of the agreement because the room was not safe or secure. The applicant provided photographs and two videos which showed large cracks in the walls of her room, a gap in the fly screen and that the window was unable to be closed and let in the rain. The applicant stated that she was also concerned for her safety due to the inability to secure the window and the room being on the ground floor.
The respondents gave evidence that they had taken a live video of the room while talking to the applicant before she accepted the agreement. That video showed the cracks and closed window. The respondent submitted that the applicant had not consistently raised any problem with the window until several days after she moved in. They stated that there was no problem with the window; they provided photos of the window when it was closed, and indicated that they had offered to show the applicant how to close the window after the applicant had recovered from her illness. The respondent pointed to a building report completed after the applicant had moved out which indicated that there were no problems identified with the windows or due to the cracking. The respondents also claimed that there was a 1.8 m high Colorbond fence 1 m from the applicant’s window with locked gates which meant that only those with the keys would have been able to get outside the window.
I accept that the applicant was not able to close the window, perhaps because she had not encountered a window of that type before, but I do not accept that the window was broken. It might have been expected that showing the applicant how to close the window was something that could have been discussed when she initially moved into the room. However, the applicant did not provide an opportunity for the respondent to either show the applicant how to close the window or repair the window if needed. While the window may have been open and let in rain, I am also not satisfied that meant that the room was unsecured. I accept the statements from the respondents that the fence would have prevented anyone other than the respondents and other occupants from accessing the area outside the applicant’s window. I therefore do not consider it reasonable for the applicant to have sought to vacate the room for this reason.
I also do not consider that the applicant was justified in vacating the room due to the cracks in the walls. While these cracks may not have been highlighted during the video inspection, I do not accept that there was any attempt to obscure or minimise the cracking during the applicant’s video inspection of the room. I am also not satisfied that the cracks were unsafe or likely to impact on the applicant’s use of the room.
The applicant did not raise problems with the window or cracks until after she had indicated that she would be vacating the property. I consider this to also be relevant to the question of whether the applicant was justified in vacating the property due to the cracks or windows. I therefore do not consider that there has been any breach of the agreement between the parties or occupancy principles associated with the window and cracking in her room, nor a basis to void the agreement between the parties.

The applicant claimed that she had been told by the second respondent when she first moved into the room that the respondents were selling the house and that she would have to frequently leave the house for her room to be inspected by potential purchasers. The applicant submitted that she should have been informed about the impending sale of the house and the impact of the frequent inspections before she agreed to move in. The applicant claimed that she was justified in seeking to vacate the property after being informed of the impending sale, and that by not telling her the respondents had misrepresented their intentions which should void the contract.
The respondents stated that they had not finally decided to sell the house until after the applicant had moved in. They accepted that they had not told the applicant about a possible sale of the house when she virtually inspected the room. The second respondent denied that he told the applicant that the house was for sale when she moved in but conceded that he may have discussed the possible sale of the house. The respondents provided a building inspection carried out on 26 February 2026 and an agency agreement for the sale of the house agreed to on 10 March 2026 as indications that they were still not sure whether they would be selling the house when the applicant moved in. They submitted that, even if they were selling the house, they would have ensured that any existing occupants would have the right to stay in the house after it was sold.
The respondents also relied on a clause in the agreement between the parties which related to the sale of the house. It stated: 14 Provisions for selling the property If the [respondents] decide to put the house on the market for sale (with two weeks notice to the tenant), the tenant agrees to keep the room clean to satisfy the [respondents] requirements for open house inspection. 14.1 Open house inspection would normally last about 4 weeks, with one or two inspections per week, and each inspection would normally last for one hour. 14.2 during the open house hours (one or two hours per week), the tenant agrees not to stay in the house to give agents and perspective buyers full access to the house. 14.3 The tenant agrees to allow the [respondents] and real estate agents (on behalf of the [respondents]), if necessary, to rearrange furniture and any items temporarily during the house inspection hours. 14.4 [Respondents] will attach the rent contract to the house sale contract and pass it on to the prospective buyers, so if the house gets sold, tenants can still live in the house under the same terms and conditions.
The respondents stated that the presence of this clause meant that the applicant was on notice that the house may be sold and that she agreed to opening her room for inspections. Their intention to sell the premises should therefore not be a basis on which the applicant can seek to set aside the agreement.
As I understand her submissions, the applicant is claiming that the respondents should have told her that they intended to sell the premises, and that the respondents’ silence should be taken to be a misrepresentation that they were not intending to sell the house.
Section 46 of the RTA provides that a tenant can apply to ACAT to terminate a residential tenancy agreement if satisfied that the agreement was induced by a false or misleading statement of the lessor. There is no equivalent provision in relation to occupancy agreements. As I have found that the agreement between the parties was an occupancy agreement, section 46 is not available to provide the basis on which the Tribunal can terminate the agreement.
However, section 46 of the RTA reflects the common law position on 18 misrepresentation. As a contract, the occupancy agreement may be rescinded on the basis that it was entered into by the occupier relying on a false statement by the grantor. At common law, silence can give rise to misrepresentation only where one party has a “duty … to reveal the matter if it exists, and where the other party is therefore entitled to infer that the matter does not exist from the [party’s] 19 silence …”. Such a duty may arise due to the nature of the agreement or the

I accept that the respondents were likely to have formed the view that they may sell the premise at the time the applicant virtually inspected the room on 24 January 2026, and that the second respondent told the applicant about that possibility on 6 March 2026 when she moved in. I do not accept that the respondents had formed the view that they would sell the property or had a firm idea when inspections were likely to take place.
Whether there was a reasonable expectation that the intention of the respondents would be disclosed, and hence a failure to disclose being misleading or deceptive, involves considering the circumstances in which the conduct occurred. This includes the knowledge of the parties to the agreement or common assumptions, the nature of the agreement, and other relevant circumstances.
In the circumstances of this case, there are several elements which would suggest that it was reasonable to expect that the intentions of the respondents would be disclosed. The applicant could be assumed to be relatively unsophisticated while the respondents had been renting out the premises for some time. The agreement was being discussed only a short time before the occupancy was intended to begin. The parties to the agreement would have an ongoing relationship and not a one-off commercial transaction where the parties can be assumed to have undertaken the risks associated with the transaction. The applicant was living outside of Australia when she entered into the agreement and hence dependent on the respondents for information about the premises. The intention of the respondents was also something that was peculiarly within the respondents’ knowledge and not something that could be discovered by the applicant without her asking the respondents. The timing of the agreement, being at the start of the university semester when it might be difficult to find alternative accommodation at short notice, also added to the applicant’s reliance on the respondents to inform her about relevant aspects of the agreement.
The agreement explicitly provided for the possibility of the premises being sold, with the respondents having to provide only two weeks’ notice before the house is put on the market and inspections could take place. However, the agreement does not make it clear how much notice will be provided before any particular inspection takes place. The agreement provides for the applicant to vacate the premises during any inspections for one or two hours a week over what is expressed to be normally a four-week period. The applicant also agrees to allow the respondents and their real estate agents to rearrange furniture and any items temporarily during the inspections without letting her know.
These provisions might be contrasted with the standard terms of a residential tenancy agreement. Standard term 81 provides that the tenant must permit reasonable access on 48 hours notice to allow inspection by prospective purchasers if the lessor intends to sell the premises and has previously notified the tenant in writing of that intention. Standard term 81A provides that a tenant must not unreasonably refuse an inspection, is not required to agree to more than two inspections a week, and the inspection must take place at a time agreed between the parties or as ordered by the Tribunal. The standard terms do not require the tenant to be absent for the inspection or allow furniture and other items to be temporarily moved.
Section 46B of the RTA also provides for termination of fixed term agreements where the premises is for sale, including where the sale offer is made within six months and the lessor did not disclose the intended sale before entering into the agreement. The tenant may terminate the agreement on two weeks’ notice.
While there is no equivalent section or principle which might apply to an occupancy agreement, section 71EH provides that as far as reasonably practicable, the grantor must give the occupant 24-hour access to the occupant’s part of the premises and a toilet and bathroom and access at reasonable times to the shared facilities. This quiet enjoyment of the premises is included as an occupancy principle under section 71EA(1)(h). I discuss below how inconsistency with this principle may void some of the provisions in the agreement between the parties. However, in considering the reasonableness of an expectation that an intention to sell the premises would be disclosed at the earliest opportunity, I consider it relevant that the agreement between the parties expressly provides for the quiet enjoyment of the premises by the applicant to be interrupted if the respondents seek to sell the property.
In my view, the provision in the agreement for selling the property is not sufficient to suggest to the applicant that the property would be sold, or that the respondents only had to inform the applicant about their intention to sell after they put the property on the market. I also recognise that the respondents intended to include provisions in the sale contract to ensure that occupants could remain in the premises even if the sale proceeded. However, I note that it is unclear whether any such provision would have been effective given under the agreement the applicant would not acquire any estate or any other interest in the room and premises. Even if the applicant was able to stay after the premises are sold, under the agreement any sale would be accompanied by perhaps more than four weeks of twice weekly inspections while the applicant was not present and which may involve her items being moved without her knowledge. Any sale would therefore have a considerable impact on the applicant. In my view it would be reasonable for the respondents to have informed the applicant that they were considering putting the house on the market at the time of the virtual inspection. By not informing the applicant, the respondents have engaged in misleading and deceptive conduct for the purposes of section 18 of the ACL.
The remedies available for a breach of section 18 of the ACL are set out in Chapter 5 of the ACL. Section 243 of the ACL provides that the Tribunal can declare the whole or part of a contract void. However, this section is expressed as an order which can be made under sections 237(1), 238(1) or 239(1). Relevantly, section 237(1) provides for the Tribunal to make such orders as it thinks appropriate on application of an injured person “who has suffered, or is likely to suffer, loss or damage because another person has engaged in [misleading and deceptive conduct]”. Therefore, before the Tribunal can make an order declaring the agreement void the applicant has to establish they suffered some prejudice or 25 disadvantage because they relied on the conduct in question.
In this case the applicant is claiming that they would not have agreed to the agreement if they had been told that the premises might be sold. I have not accepted that the applicant suffered any loss or prejudice because she stayed in unsafe or insecure premises for the three days she stayed in the premises. She

Section 71E of the RTA provides that an occupancy agreement is taken to contain the occupancy principles as in force from time to time. An occupancy agreement may contain occupancy rules and additional terms, but an occupancy rule or additional term which is inconsistent with the occupancy principles is void.
I have described the agreement between the parties in general terms and their possible inconsistency with the occupancy principles above. The applicant submitted that so many of the terms of the agreement are inconsistent with the requirements of the RTA that the agreement should be considered void in its entirety. I do not agree with this submission. It does not reflect the discussion earlier in these reasons that the agreement’s potential inconsistency with the occupancy principles did not prevent it being an occupancy agreement. It also does not reflect the operation of section 71E(1)(a) which provides that the occupancy agreement is taken to contain the occupancy principles as in force from time to time.
As also discussed above, the occupancy principles do not contain the equivalent of section 46B of the RTA which provides for termination of a residential tenancy agreement by the tenant on two weeks’ notice after being informed of the intended sale of the property, or the various standard terms which provide for inspection of the premises by prospective purchases. The occupancy principles do however include grant of the quiet enjoyment of the premises including access as set out in section 71EH (section 71EA(1)(h)). Section 71EH requires the grantor to give the occupant, as far as reasonably practicable, 24-hour access to the occupant’s part of the premises and a toilet and bathroom and access at reasonable times to shared facilities. In my view, the requirement that the tenant not stay in the house during inspections when the property is being sold, and the ability of the respondents and their agents to rearrange furniture and other items, are inconsistent with the occupancy principle in section 71EA(1)(h) to provide enjoyment and 24-hour access. The provisions in the agreement between the parties for selling the property are therefore void.
The occupancy principle in section 71EA(1)(f) states that an occupancy rule must be reasonable and proportionate to the outcome sought by the imposition of the rule. In my view, the occupancy provisions relating to the selling of the property are inconsistent with this occupancy principle and also be void on this basis.
The occupancy principle in section 71EA(1)(l) states that a party to the occupancy agreement must not terminate the agreement otherwise than in accordance with section 71EK. Section 71EK relevantly provides: 71EK Termination of occupancy agreement (1) The grantor must ensure an occupancy agreement states— (a) under what circumstances the occupancy agreement may be terminated; and (b) a reasonable period of notice that must be given by a party before the agreement is terminated. (2) For subsection (1) (a), the occupancy agreement may only allow a party to terminate the agreement under circumstances that are reasonable having regard to the nature of the occupancy. Examples—nature of occupancy 1 whether the occupancies of the premises are usually long-term or short-term 2 whether the agreement is for a fixed term or is periodic 3 whether the accommodation is provided by a commercial provider or is in someone’s residence 4 whether the accommodation is provided for a particular group of people such as students studying at a university (3) A party may only terminate an occupancy agreement if— (a) all parties to the agreement agree; or (b) the agreement allows the party to do so and the party has given notice in accordance with the agreement; or (c) the other party has— (i) breached an occupancy principle or the occupancy agreement; and (ii) the breach justifies the termination of the agreement.
The circumstances of this case do not appear to meet any of the requirements of section 71EK(3); the parties have not reached an agreement, the agreement does not allow for the agreement to terminate for the reasons given by the applicant, and the respondents have not breached an occupancy principle or the agreement.
However, the agreement between the parties provides for termination by the grantor where the occupant has breached the agreement, including failing to pay an amount due, ceasing to occupy the premises before the end date, becomes bankrupt or acts or behaves in a way which justifies immediate eviction. There is no provision for the applicant to terminate the contract, such as on the basis of the grantor’s breach of the agreement, or where, such as here, the grantor has provided notice that they intend to sell the property.
Similarly, the agreement generally provides for the respondents to provide notice under the Act. While the respondents in this matter have only sought three weeks rent, the agreement provides that if the occupant vacates the room prior to the end date of the agreement or the grantor otherwise terminates the agreement, the occupant will remain liable to pay for the room until the end date of the agreement or the date the respondent enters into a replacement occupancy agreement. There is also provision for an early termination fee and other administrative charges associated with early vacation of the room, although the amount of those charges and fees are not specified.
Section 71EK(1) would have a very limited basis if it merely provided for the grantor to determine the circumstances in which an occupancy agreement can be terminated. In my view, the respondents have breached section 71EK(1) by not ensuring that the occupancy agreement identifies circumstances in which the occupants can terminate the agreement or provide for a reasonable period of notice that can be given before the agreement is terminated without potentially remaining liable for rent until the end of the occupancy agreement.
Similarly, section 71EK(2) provides that an agreement may only allow a party to terminate the agreement under circumstances that are reasonable having regard to the nature of the occupancy. This section allows the Tribunal to consider the reasonableness of the termination clause in the agreement between the parties, and its provision for the respondents to terminate the agreement after the occupant ceases to occupy the room before the end date of the agreement, with the consequence of being liable to pay for rent until the end date or the room is rented to someone else. In my view, a blanket termination clause of this form is not reasonable having regard to the nature of the occupancy. Even though the occupancies of the premises may be relatively long-term in nature and for a fixed term without a further agreement, the respondents are not providing accommodation in their place of residence, and are providing accommodation for university students, typically coming from overseas, who may be restricted in their ability to find alternative accommodation at short notice. In my view that requires consideration of the reasons why an occupant may wish to vacate the property, at least through placing a cap on the liability of the student.
I recognise that an occupancy agreement is generally regarded as affording less protection to the occupants than a residential tenancy agreement. However, given the nature of this occupancy agreement I would consider the requirement to give two weeks’ notice before ceasing to occupy the room after having been told by the respondent that they are intending to sell the property to be reasonable.
I would therefore consider it appropriate to make orders declaring that the agreement between the parties is an occupancy agreement and providing for the payment by the applicant of two weeks rent on the basis that this would, in my view, have been a reasonable amount of notice to have provided the applicant before ceasing to occupy the room. I have been told that the security deposit paid by the applicant has not been lodged by the respondent. In those circumstances I consider it appropriate to order that the respondent return the security deposit to the applicant after deducting the amount of two weeks rent. I do not consider there to be any basis on which to award compensation to the applicant for the rent paid to stay with her friend after she vacated the premises. As the applicant has been successful in establishing that the terms of the agreement are inconsistent with the occupancy principles, I consider it appropriate that the respondents compensate her for the tribunal filing fee.
The applicant raised a concern that the respondent had not done enough to demonstrate that they had rented out the room as quickly as possible so as to mitigate any loss of rent after the applicant moved out. The applicant claimed that the respondents had left the advertisement for the room in place after the applicant agreed, and that the respondents had indicated to the applicant when she first inquired about the room that there was another person who had expressed an interest. The respondents stated that they did not rent out the room until 6 March 2026. I am not satisfied that the respondents acted unreasonably in seeking to rent out the room to another person or otherwise should have been expected to rent out the room within the two-week period for which I consider notice should have been given.