Additional occupants in a rental property - what can you do?

As cost of living and rental increases continue to affect tenants across the state, property managers may experience situations where tenants are using loungerooms, living rooms, and studies as bedrooms in an effort to minimise rental costs. In this article, we discuss best practice tips for dealing with additional occupants in rental properties.

The tenancy agreement

Readers will be aware that Item 15 of the Form 18a – General Tenancy Agreement specifies the maximum number of occupants that are allowed to reside at a rental property. Clause 23 of the Standard Terms provide that no more than the number of persons stated in Item 15 may reside at the property.

As a preliminary point, it is important to ensure that property managers receive clear instructions from their lessor clients as to the number of occupants allowed at the property at the start of the tenancy, and that Item 15 is correctly completed, in order to avoid any disputes in this regard later in the tenancy.

Unauthorised occupants in the property

In addition to the usual aspects concerning cleaning and maintenance that property managers will take note of during routine inspections, it is possible that property managers will also discover additional beds or mattresses in rooms other than the approved bedrooms. Whilst a mattress alone does not prove there are unapproved persons in a property, property managers should be aware of other indicators – whether there are also clothes and personal belongings stored alongside the additional beds, whether there are additional cars outside, or additional evidence of extra occupants in the property.

If there are suspicions of additional occupants, it is prudent to notify the lessor as soon as possible to seek their instructions with respect to future conduct. It is also important to ensure that there is adequate documentation, such as photos, and correspondence with the tenants, to prove that there are additional occupants in the property. Lessors may then elect to issue the tenants with a Notice to Remedy Breach for a breach of clause 23 of the Standard Terms of the General Tenancy Agreement.

If the lessor instructs the property manager to issue a Notice Remedy Breach, tenants will have seven days to remedy the breach and have the unapproved occupants removed from the property. A breach relating to the number of occupants allowed to reside in a property is considered a significant breach in accordance with 192(2)(a) of the Residential Tenancies and Rooming Accommodation Act 2008 (the RTRA Act). In accordance with section 192(1)(i) of the RTRA Act, property managers may inspect the property within 14 days of the end of the allowed remedy period to ascertain whether the tenants have remedied the breach.

Finally, if the tenants fail to remedy the breach, property managers may, on instructions from their lessor clients, issue the tenants with a Notice to Leave, and then, if necessary, apply to QCAT for a termination order and warrant of possession if the tenants fail to leave within 14 days of expiry of the Notice to Leave. 

Other considerations

Property managers will be aware of the new smoke alarm legislation amendments that came into effect for residential tenancies on 1 January 2022. These amendments mean that smoke alarms must be installed in each bedroom, as well as on each storey and in hallways which connect bedrooms and the rest of the dwelling. If there are unapproved occupants sleeping in, say, a study or living room, there is a chance that there will be insufficient smoke alarms installed to provide early warning to the tenants if there is a fire.

In accordance with section 185 of the RTRA Act, the lessor must, at the start of the tenancy and while the tenancy continues, ensure that any law dealing with the health or safety of persons using or entering the property is complied with. If the lessor is aware that tenants are sleeping in a study, living room, or other unapproved area, without sufficient smoke alarms, and fail to take any steps to remedy the situation, the lessor may then be in breach of section 185 of the RTRA Act.

In a similar vein, special condition 51 of the General Tenancy Agreement provides that a tenant must not do, or allow anything to be done, that would invalidate the lessor’s insurance policy. We also note that in accordance with section 184(a) of the RTRA Act, tenants must not use the premises for an illegal purpose. This could extend to using rooms that are not legal bedrooms in accordance with the National Construction Code as a bedroom.

Conclusion

As the cost of living continues to rise, property managers may discover additional unapproved occupants living in rooms in rental properties that are not designated bedrooms. It is important that property managers seek instructions from their lessor clients in writing before taking any steps to issue tenants with a Notice to Remedy Breach or Notice to Leave. Finally, a failure to address potential unapproved occupants could result in unintentional breaches of the RTRA Act by lessors.

Read another article about tenancies: Dealing with a change of co-tenancy.

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