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Prisoner is sharing a rented property

Prisoner is sharing a rented property.

There are different kinds of share house arrangements. People can share together:

  • as equal tenants (with all having equal rights and responsibilities), or
  • in situations where one tenant may be sub-letting from another tenant, or
  • where one person lives under a licence agreement (like a border). If this is the case, the person is not covered under the Residential Tenancies Act 1997 at all.

Notifying the co-tenants

If all tenants’ names are on the lease, the prisoner is a co-tenant. The prisoner will need to notify their co-tenants as well as the landlord if they want to leave. They should send this by registered mail and keep a copy.

Where the lease is a fixed term, the prisoner may be held responsible for paying all of the rent until the lease ends, even though they are no longer living at the property. (This is because each co-tenant on the lease is jointly and severally liable for paying the outstanding rent.) So, the landlord can pursue the whole debt by suing anyone they choose. They do not have to chase up each tenant for the amount they owe individually.

The burden of paying rent and of maintaining the tenancy will fall on those who remain at the property. However, the other co-tenants may get another person into the property while the prisoner is away.

VCAT cannot determine any dispute between co-tenants so the prisoner should work out between their co-tenants an agreement as to liability for bills and rent.

Action for the prisoner to take

The prisoner should write to each of the other co-tenants and also to the landlord, declaring that they are leaving (vacating) the premises. Although not covered by the Residential Tenancies Act 1997, it is likely that (if the remaining tenants decide to stay on at the property) the Victorian Civil and Administrative Tribunal (VCAT) will view this letter as ending the prisoner's interest in the tenancy.

Property damage

If the property is damaged while the prisoner is in jail, the prisoner may still be liable for the damage if their name is on the lease. It is a good idea for the prisoner to advise the landlord or agent of the time they will not be living at the property. Claims for damages due to economic loss are able to be apportioned under the Wrongs Act 1958 (Vic). This means that the prisoner would need to prove that they were in prison at the time that the property was damaged. This way they could shift the burden onto the remaining tenants.

See s. 24AI—Wrongs Act 1958 (Vic)(opens in a new window).

Licensee (border)

A person who is living under a licence agreement (like a border) is not covered by the Residential Tenancies Act 1997 (Vic), however they do have rights under contract in the Australian Consumer Law Fair Trade Agreement Act 2012 (Vic). Sometimes it is hard to tell whether a person has a lease or a licence. A licence is a personal interest to enter premises, rather than a proprietary interest. The deciding factor is whether the occupant has been given the right to exclusive possession.

A licence agreement commonly happens where the person is occupying a room in a house and the owner of the house is also living there.

For details see Property and tenancy—Share housing—Licensees.

More information

Legislation

Wrongs Act 1958 (Vic)

  • s. 24AE—defines an apportionable claim
  • s. 24AF—claims for economic loss or damage to property in an action for damages arising from a failure to take reasonable care
  • s. 24AI—proportionate liability for apportionable claims

See Wrongs Act 1958 (Vic)(opens in a new window).

Australian Consumer Law and Fair Trading Act 2012 (Vic)

  • s. 185—additional powers of VCAT, unjust contracts and contract terms

See Australian Consumer Law and Fair Trading Act 2012 (Vic)(opens in a new window).

Residential Tenancies Act 1997 (Vic)

  • s. 446—VCAT jurisdiction in tenancy matters

See Residential Tenancies Act 1997 (Vic)(opens in a new window).

Updated