Main content area

Life tenants

Clause 19 of the Residential Tenancies Regulation 2010 excludes from the Residential Tenancies Act 2010 (NSW) (the RT Act 2010) ‘premises that are subject to a life tenancy’.

It appears that this clause applies to both of the two quite different types of ‘life tenancy’ recognised by the law.

The first type of life tenancy is that of a tenant who has a residential tenancy agreement for the term of their life. It appears that these tenancies, being excluded from the RT Act 2010, may be subject to the Landlord and Tenant Act 1899(NSW).

The second type of life tenancy is a freehold ‘life estate’ in respect of a property. The holder of a life estate has full possession of the property, does not pay rent (they are entitled to let the property and collect rents), and doesn’t really have a landlord (instead, the person who is entitled to possession of the property when the life estate holder dies is a ‘remainderman’). Life estates are usually created by a will (and typically given to a widow, while the ‘remainder’ goes to the children), but they may be created otherwise. This type of life tenancy was probably not subject to the RT Act 2010 anyway, regardless of clause 19.

If you think you may have a life tenancy of either type, seek advice from a lawyer.

Note that the exemption at clause 19 does not apply where the premises are occupied by the sub-tenant of a life tenant (clause 19(2)). This appears to mean that a life tenant (of the first type above) who would otherwise be excluded from the Act may actually be covered if they sublet a room to a housemate.

This is changed

Life tenants were not mentioned in the RT Act 1987. In any event, it would not have applied to freehold life tenants.