(a) The owner lives in the house and takes in a resident characterised at law as boarders or lodgers, who occupy a room and have permission to use common facilities.[2] These arrangements are excluded from the definition of a residential tenancy agreement by section 6E(1)(a) of the RT Act. Boarders and lodgers may fall with the definition of an 'occupant' for the purposes of Part 5A as defined in sections 71B and 71C of the RT Act.

(b) The owner lives in the house and takes in an occupant within the meaning of Part 5A of the RT Act for a room, who is not a boarder or lodger, with license to use common facilities.

(c) The owner lives in the house and takes in a tenant within the meaning of sections 6 and 6A of the RT Act for a room, with licence to use common facilities.

1. Each of these three possibilities constitutes a different contractual licence that carries different rights and responsibilities. The primary issue is which of these possibilities applies in the present case.
2. Section 6A of the Residential Tenancies Act 1997 defines a residential tenancy agreement as follows:

_(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

(b) in writing, oral, or partly in writing and partly oral.

(b) given with a right to use facilities, furniture or goods.

1. Once an agreement is determined to be a residential tenancy agreement then the standard terms of Schedule 1 Residential Tenancy Act 1997 automatically apply and the tenant obtains a bundle of rights, including the right to quiet enjoyment of the premises (standard term 52) and the exclusive right of possession of the tenanted part of the property (standard term 53):

52 The lessor must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.

53 Unless otherwise agreed in writing, the tenant has exclusive possession of the premises, as described in the agreement, from the date of commencement of the tenancy agreement provided for in the agreement.

1. An 'occupancy agreement' is defined in section 71C of the RT Act as:

_71C(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

(d) the agreement is not a residential tenancy agreement.

(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)).

(b) given with a right to use facilities, furniture or goods.

_(4) The person given the right to occupy the premises may be - _

(b) someone prescribed by regulation for this section.

1. There are no prescribed standard occupancy terms and so the parties may determine their own terms subject to the Occupancy Principles set out in section 71E of the RT Act. These principles come into play because sections 73 and 74 of the RT Act authorise the Tribunal to hear and determine occupancy disputes and when doing so the Tribunal 'must have regard to the Occupancy Principles'.
2. 'To have regard to' the Occupancy Principles does not mean that the Occupancy Principle must strictly apply in each case. It means that the Tribunal is required to give them serious consideration.[3]
3. Section 71E, as it presently stands, provides:

71E(1) In considering a matter, or making a decision, under this Act in relation to an occupancy agreement for premises, a person must have regard to the following principles (the occupancy principles ):

_(a) an occupant is entitled to live in premises that are - _

(b) an occupant is entitled to know the rules of the premises before moving in;

(c) an occupant is entitled to the certainty of having the occupancy agreement in writing if the occupancy continues for longer than 6 weeks;

(d) an occupant is entitled to quiet enjoyment of the premises;

(e) a grantor is entitled to enter the premises at a reasonable time on reasonable grounds to carry out inspections or repairs and for other reasonable purposes;

(f) an occupant is entitled to 8 weeks notice before the grantor increases the amount to be paid for the right to occupy the premises;

(g) an occupant is entitled to know why and how the occupancy may be terminated, including how much notice will be given before eviction;

(h) an occupant must not be evicted without reasonable notice;

(i) a grantor and occupant should try to resolve disputes using reasonable dispute resolution processes.

1. A perusal of the definition of a residential tenancy agreement and that of an occupancy agreement set out above, discloses little by way of difference. The key difference is that a residential tenant necessarily obtains the exclusive right of occupancy of the leased part of the premises and the right to the quiet enjoyment thereof, which are rights not automatically conferred on an occupant. Other differences stem from the range of standard terms of residential tenancy agreements set out in Schedule 1 of the RT Act which do not apply to an occupancy agreement; and from the Occupancy Principles which do not apply to residential tenancies.
2. The difference between residential tenancies and occupancy agreement, and the extent of the permissible use of 'house rules' to constrain a resident's rights in the house, have been discussed by the presently constituted Tribunal.[4]
3. In Conteh v Fan [2011] ACAT 45 and in Bangura v Fan [2013] ACAT 38 the presently constituted Tribunal discussed the effect of overcrowding in circumstances where the lessor takes in as many people as can fit in the house, with little regard to issues of security, privacy or comfort, sometime called 'slum landlords'.
4. One thing that residential tenancies and occupancy agreements both have in common is that they both confer a right on the resident to live in the premises 'as a home'. The RT Act does not define the word 'home' and so it takes its ordinary meaning. The present Tribunal takes some guidance from the Re Dickeson and Secretary Department of Social Security (1989) AATA 190 where the Administrative Appeals Tribunal (Cth) took the word 'home' to include the place where a person ordinarily eats morning and night, sleeps and is "the centre of gravity of ones domestic life". The present Tribunal adds that a 'home' is somewhere an adult has a degree of security, privacy and autonomy in making decisions concerning their domestic life, akin to the old adage that 'a man's home is his castle'. Living a domestic life in a premises at the whim and direction of another person is not consistent with the concept of a 'home', nor is living in an overcrowded house with little privacy, security or autonomy in the use of shared facilities.
5. In the present case the respondent closely controlled the applicant's domestic life. The applicant was put on a roster for cleaning, was told that he could not use the air conditioning facilities, he could not have visitors at all without the respondent's prior approval, the respondent could direct any visitors to leave, the applicant could not use the living room and its facilities, he had to leave the house when and for as long as the respondent directed, he had to vacate the premises without cause when directed by the respondent and was locked out by the respondent when a dispute arose. The applicant had to use the shared facilities of one bathroom, one toilet and one kitchen with the respondent, her daughter and partner and the male person in the other room.
6. It is difficult to define the concept of a 'home' with precision, but the present Tribunal finds that the degree of control exercised by the respondent over the applicant's domestic life was bordering on 'parental' and would be offensive to most adult persons to the point that he was not granted the right to use the premises as his 'home'.
7. The respondent maintained that the agreement was a residential tenancy agreement. The Tribunal does not accept this characterisation. But if the agreement were taken to be a residential tenancy agreement then the agreement, and the respondent's application of the agreement, would at least infringe the 13 matters set out in [19] above.
8. If the agreement was an occupancy agreement under Part 5A of the RT Act then the Tribunal must have regard to the Occupancy Principles at [40] above. In this event the respondent's terms and conduct at [19] above would breach Occupancy Principles (b), (c), (d), (g), (h) and (i).
9. Either alternative of [47] or [48] would normally attract compensation to the applicant, had he taken up the opportunity the Tribunal gave him to obtain legal advice and amend his application in these terms. This was not done and so the Tribunal does not need to further pursue these breaches and the quantification of compensation.
10. The respondent has charged the applicant for 'his share' of the utility charges. There was no separate metering of his room and so the respondent was not lawfully entitled to levy this charge under a residential tenancy agreement (standard term 42(c)). The utility charges should have factored into the rent. The applicant is entitled to a refund of these amounts.
11. The applicant should have cleaned his room before he left, but the unlawful lockout by the respondent deprive him (and his mother) of the opportunity to do so. The respondent claims $60 for the applicant having failed on three occasions to do his rostered cleaning. There was no evidence on the duty to clean, the frequency and the nature of the cleaning or of how the respondent arrived at $20 per clean. The applicant should have paid for the cleaning products he used which the respondent assessed at $30. Again, there was no evidence for this sum.
12. The respondent claimed against the bond for the unexpired part of the four weeks' notice period. If the agreement is a residential tenancy agreement, then the four weeks' notice is unlawful, and the applicant only has to give three weeks' notice in a periodic tenancy.[5] If the agreement is an occupancy agreement, the Tribunal is not satisfied that the applicant was told of, or agreed to, four weeks' notice. The respondent did not reduce this term to writing at the start and did not reduce the occupancy agreement as a whole to writing after six weeks as she was required to do. Nor is it apparent to the Tribunal that the respondent actually suffered any loss by reason of any delay in finding a new 'tenant' for the applicant's room.
13. The applicant agreed to the rent on the basis of the number of occupants in the three-bedroom house at the time. He was not consulted and did not agree to the respondent's daughter and partner taking up occupancy. He would probably have succeeded in an application for a rent reduction in these circumstances.
14. Even if there were some basis for the respondent to recover some small amount from the applicant's bond, the Tribunal is not disposed to order that amount. Firstly, because it would not exceed the utility charges wrongly extracted from the applicant. Secondly, on the facts the respondent has engaged in a series of unlawful conduct that could have resulted in a sizable award to the applicant had he chosen to pursue that path. It would be unconscionable for the Tribunal to order the applicant to pay any amount to the respondent in these circumstances.
15. For the above reason the respondent's claim against the bond is dismissed.
16. The applicant is entitled to a full refund of his bond.
17. The matter is referred to the Registrar for consideration of the respondent's failure to lodge the bond with the ACT Rental Bonds office given her evidence that this was something she never did with any of her tenants.

[1] Anforth et al, Residential Tenancies Law and Practice in NSW (The Federation Press, 7th ed, 2017) at [2.3.8]

[2] See Anforth et al, Residential Tenancies Law and Practice in NSW (The Federation Press, 7th ed, 2017) at [2.3.8] for the definition of boarders and lodgers

[3] Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; BGBZ and National Disability Insurance Agency [2019] AATA 3505

[4] Toora Women's Inc v Various Tenants [2020] ACAT 2; Commissioner for Social Housing v Johnson [2014] ACAT 57; Lochrin v Jaiswal [2018] ACAT 78; Environmental Collective Housing Organisation Inc v Mathias [2019] ACAT 9

[5] Residential Tenancies Act 1997 standard term 88(1)