There can be confusion about whether a renter is a co-renter, sub-renter or a licensee.
It is important to know what rental arrangement you have, especially if you are not on the rental agreement, as not all arrangements fall under the Residential Tenancies Act 1997.
Co-renting is the most common type of shared housing arrangement. This occurs when 2 or more renters enter into a rental agreement with the rental provider, and everyone’s name is on the agreement.
The rental agreement falls under the protections of the Residential Tenancies Act 1997, which sets out the rights and responsibilities of renters and rental providers. Any disputes between the renters and the rental provider that cannot be resolved can be decided by VCAT under its Residential Tenancies List.
Subletting and ‘exclusive possession’
If a person is sharing part of a rental property with another person, without a rental agreement with the rental provider, they are not necessarily subletting. If they are not subletting they may not have the renter protections of the Residential Tenancies Act 1997.
Legally speaking, to be a renter who is subletting you must have ‘exclusive possession’ of all or part of the rented property.
Examples of ‘exclusive possession’, include:
- Renting a room in a rental property that has a lockable door when you are the person with the key to that room
- Renting a separate part of a rental property, such as an outside studio, when you are the only person who accesses and uses that space
If you have ‘exclusive possession’ of a property, or part of it, that you are renting from another renter, who is the ‘head-renter’, rather than from the rental provider, you are considered to be a renter under the law and have all the rights, responsibilities and protections of the Residential Tenancies Act 1997.
Any disputes between you and the head-renter that cannot be resolved can be decided by VCAT under its Residential Tenancies List.
Other circumstances that may indicate a subletting arrangement include:
- One renter signed a written rental agreement with the rental provider and the second renter did not
- One renter moved in first, and had the bond is registered in their name, and the second renter paid their share of the bond to the first renter
- One renter collects the rent from the second renter and pays it to the rental provider
- One renter Is responsible for all dealings with the rental provider, such as reporting repairs or giving notices
However, none of these circumstances alone will prove that there is a subletting arrangement, as the legal situation depends on the facts in each individual case.
You may be considered to be a ‘licensee’ if you do not have a rental agreement with the rental provider and are not subletting – you do not have ‘exclusive possession’ of the property you are renting, or part of that property.
Licensee arrangements are not covered by the Residential Tenancies Act 1997, so you will not have the rights, responsibilities and protections renters usually have under those laws.
Any disputes between you and the person you are renting from could be decided by VCAT under the Australian Consumer Law and Fair Trading Act 2012 (Vic) in its Civil Claims List. You would not have the same rights that renters have under the Residential Tenancies Act 1997.
If you share a house with the rental provider, you are presumed to be a licensee, unless you can show you are subletting – that you have ‘exclusive possession’ over the part of the property you are renting.
Disputes between renters
Tenants Victoria is unable to give advice on disputes between co-renters as we cannot take sides between renters.
VCAT can decide disputes between sub-renters and head-renters, but cannot deal with disputes between co-renters.
One way of resolving disputes is by mediation through the Dispute Settlement Centre of Victoria. However, all renters in the dispute must agree to go to mediation. Call the Dispute Settlement Centre on 1300 372 888 or visit its website.
If you need legal advice the Federation of Community Legal Centres (FCLC) can refer you to a legal centre in your area. Community legal centres provide free legal advice to eligible people, but not all of them are able to advise on rental matters or disputes between co-renters. Call the FCLC on 9652 1500 or visit its website.