Occupancy principles

The occupancy principles are a list of broad, basic rules set out at Schedule 1 of the Boarding Houses Act 2012 (the BH Act). You are entitled to be provided with accommodation in compliance with the occupancy principles (section 31(1)(a)). This also is a term of your occupancy agreement (section 31(3)).

Click here for A quick guide to the NSW Boarding House Occupancy Principles.

 

Table 8.1 The occupancy principles
Occupancy principle Extract
1. State of premises

A resident is entitled to live in premises that are:
(a) reasonably clean
(b) in a reasonable state of repair
(c) reasonably secure.

2. Rules A resident is entitled to know the rules of the registrable boarding house before moving into the boarding house.
3. Penalties prohibited A resident may not be required to pay a penalty for a breach of the occupancy agreement or the rules of the registrable boarding house.
4. Quiet enjoyment of the premises A resident is entitled to quiet enjoyment of the premises.
5. Inspections and repairs A proprietor is entitled to enter the premises at a reasonable time on reasonable grounds to carry out inspections or repairs and for other reasonable purposes.
6. Notice of increase of occupancy fee A resident is entitled to 4 weeks written notice before the proprietor increases the occupancy fee.

7. Utility charges

'Utility' means supply of electrictiy, gas, oil or water (BH Act Schedule 1, Occupancy principle 7, clause 2)

(1) The proprietor is entitled to charge a resident an additional amount for the use of a utility if:
(a) the resident has been notified before or at the time of entering the occupancy agreement of the use of utilities in respect of which the resident will be charged, and
(b) the amount charged is based on the cost to the proprietor of providing the utility and a reasonable measure or estimate of the resident’s use of that utility.

8. Payment of security deposits (1) The proprietor may require and receive a security deposit from the resident or the resident’s authorised representative only if:
(a) the amount of the deposit does not exceed 2 weeks of occupancy fee under the occupancy agreement, and
(b) the amount is payable on or after the day on which the resident (or the resident’s authorised representative) enters the agreement.
(2) Within 14 days after the end of the occupancy agreement, the proprietor must repay to the resident (or the resident’s authorised representative) the amount of the security deposit less [reasonable costs, as specified in the occupancy principle].
9. Information about termination A resident is entitled to know why and how the occupancy may be terminated, including how much notice will be given before eviction.
10. Notice of eviction (1) A resident must not be evicted without reasonable written notice.
(2) In determining what is reasonable notice, the proprietor may take into account the safety of other residents, the proprietor and the manager of the registrable boarding house.
11. Use of alternative dispute resolution A proprietor and resident should try to resolve disputes using reasonable dispute resolution processes.
12. Written receipts A resident must be given a written receipt for any money paid to the proprietor or a person on behalf of the proprietor.

Note that the occupancy principles are expressed broadly, and some of them are short on details. For example:

  • Occupancy principle 4 says you are entitled to know the house rules, but does not say what the rules are;
  • Occupancy principle 9 says you are entitled to know how and why your occupancy may be terminated, including how much notice will be given, but does not say what the grounds or notice periods will be. (Similarly, occupancy principle 10 says the amount of notice must be ‘reasonable’, but does not specify what will be a reasonable amount of notice.)

These details should be in your occupancy agreement. The terms of your occupancy agreement should set out these details, within the broad rules of the occupancy principles.

Your occupancy agreement may have other terms that are not required to be included by the occupancy principles: for example, the term that states you must pay an occupation fee (there is no occupancy principle that says this has to be in your agreement). These terms are valid, as long as they are not inconsistent with the occupancy principles.

Terms inconsistent with the occupancy principles are void (section 31(4)).