Undeclared phantom tenant... what to do?

If only someone had seen the old "Banana up the tailpipe" scene from Beverley Hills Cop then a lot of grief might likely have been averted.

And the third person might have just moved on...with the aid of a tow truck....

 

From my understanding of the situation and happy to be proven wrong as it's not my field of work, If the PM/owner has stipulated number of tenants as 1 on the lease contract, they'll need to apply for a sub-tenant approval from the MP/Owner to which is opened to vetted checks. Some vetted checks that you can decline on are if they're listed on a Tenancy blacklist data base, they have bad references, or they're not suitable for the property, if rejected and the Tenant feels it's not fair they can complain to their RTA and have the matter dealt with there.

There's only so long that a guest can claim being a visitor when on the property and if they're receiving mail to that address, and they have their belongings at the address like furniture, it is pretty safe to say that they're no longer a guest or visitor and residing on the property.

Insurance companies will not even tell you there is a problem until you need to claim.
You might want to have a look at these articles below for insurance implications and like I said previously, it's a can of worms.



https://www.stillsproperties.com.au/illegal-subletting-the-issues-and-risks-for-property-owners/

The potential pitfalls of sub-letting | Maintenance Manager

 

Its my line of work, and that's not correct. In short:

- It doesn't matter how many occupants stipulated on the lease contract - it largely has no legal effect unless some other laws or terms are broken.

- someone living with a tenant, even full time, is not a 'sub-tenant' at law, and not subject to the laws/terms about 'sub-letting'.

- the main upshot of all this is that a lessor pretty much has no say in who else lives in the tenancy unless some other terms are broken (such as overcrowding, cleanliness, nuisance, etc). This is part of the whole point of a tenancy at common law, and historically by the way.

- I haven't had a close look but I suspect most insurance companies are wrong or lying if this sort of thing would void claims.

 

That's the whole problem the OP has, it's nearly impossible to prove, all you can do is ask. I do inspections with my MP so if I see a double up of future strangely being stored and there is evidence of other people living in the home I ask. Matt was saying anyone can move in after they sign a lease, it's not so from what I understand.

Not legal to do and not recommend but drivebys reveal a lot, you can ask the neighbours, I always leave my phone number with the friendly ones and I do get phone calls when there are problems. It's not illegal to visits friends that you have living in the same street as your rental either.

 

If they contribute to the rent and are residing on the property, not on the lease I believe it is illegal sub-letting, except for children under 18.

What's the point of having the number of tenants on the lease then ? If it's the partner, family member or friend living on the property and the listed tenants are not charging them anything, would that be a visitor or guest as they are not listed as a tenant on the lease contract?

 

@thatbum Have a look at this RTA contract
General tenancy agreement (Form 18a) | Residential Tenancies Authority

 

Nope. Its what I said earlier.

I just said there's not much legal point.

I don't see why this matters. There's not really any legal difference in lessor/tenant legal relationships if guests/visitors/housemates/family pay or don't pay the tenant to stay.

I know what a tenancy contract looks like yes.

 

'Number of persons able to reside at premise' is a lovely box to fill, but has little meaning without being able to conclude whether someone is infact 'residing at a premise'.

Beyond someone admitting they live somewhere, I dont think it can be proven by mere opinion.
Having my mail sent somewhere, or my belongs stored somewhere etc does not prove I 'reside somewhere'.

 

Beyond someone admitting they live somewhere, I dont think it can be proven by mere opinion.
Having my mail sent somewhere, or my belongs stored somewhere etc does not prove I 'reside somewhere'.[/QUOTE]


Yeah, that's main issue here, but I'm sure if there was an insurance claim, there might be legal implications with people to found as residing on the property that weren't meant to be there. Say for eg they had claimed against your public liability and handed over a document of proof of who they were and it listed the address of the rental.

 

So you're virtually implying that the RTA contract is not lawful or invalid, it would be good to hear the opinions of other legal practitioners on this because I find it hard to believe. I'm pretty sure there is a legal definition that defines what a Guest, Visitor and Tenant is, proving what they actually are in the rental is another debate all together.

 

Fact sheet from (Tenants Queensland (TQ) is a specialist community legal service for residential renters) https://tenantsqld.org.au/wp-content/uploads/2017/08/Visitors-and-Guests-RR6.pdf

 

Well I'm not implying that. I'm literally saying that. To clarify, its not invalid in itself - it just is once you put a number in the box that would contradict a tenant's reasonably enjoyment of the property. Which would be pretty much living with whoever they want, on whatever lawful terms they want.

Lol. I used to supervise the drafting of these sorts of info sheets when I used to be a specialist tenancy solicitor myself...

"...they can't stay too long or this can cause problems"?

That says nothing either way basically.

I don't know why you don't seem to believe me. Wishful thinking maybe.

Why would I make it up?

 

How does the saying go? Something along the lines of.... It's not what you know, it's what you can prove.

 

Nobody is stopping them from enjoying the home and don't legal binding contracts mean anything anymore ? Tenants are within their legal right to bring people into their home but by looks of everything I've read from RTA sites there are certain conditions to follow when they fall within the area of a permanent resident of the home rather than a visitor or guest, it's not free for all like some want to make it out to be.

Because you haven't sited anything legal to back yourself up other than saying you know or your right and as far as I know you're another random online, you might be telling the truth of your interpretation of the laws but I wouldn't really know and that's why I've asked you further questions.

 

I'll be blunt, you as a landlord are being far too invasive into the lives of your tenants. It's your house, but it's their home, and provided the place is kept in good repair and you still get paid it's really none of your business what goes on beneath the roof subject to no criminal activities and no violations of applicable council regulations/strata schemes. Unconscionable or unreasonable clauses are never enforceable and a maximum occupancy specifically because you want to control whether your tenants have a relationship is the very definition of it.

You're far too emotionally invested and frankly way too much of a control freak - sell up your residential property and buy shares or something, at least that way you'll get to vote at AGMs.

He's a lawyer, it's his job. He's probably prosecuted or defended this very matter a number of times but as you would know a lawyer cannot go into details of cases they worked on due to professional priviledge.

 

"Binding contracts" can't contract out of the core entitlements granted to a tenant under a tenancy agreement.

One of those is essentially to live and enjoy the property as if they were the owner of the premises, for the duration of the tenancy. Its pretty much what "quiet enjoyment" of the property means, which part of the legislation in every statement, as well as being a common law element in all grants of tenancy.

A good rule of thumb to ask yourself "would I as the owner be allowed to do that?". There's only a few select exceptions to this given the context as a residential tenancy (no major alterations to the premises, etc)

Obviously controlling who the tenant lives with would come under that prohibition.

Otherwise think about it. Do you think with a stroke of your pen, you're allowed to stop your tenants having a family member staying over? Or have a boyfriend or girlfriend?

Where does it end? Your tenant couple aren't allowed to have a kid right? Because that would breach the maximum occupant number of 2 that you put on your lease right?

I think you tried to suggest that there was an "under age of 18" exception in there somewhere, but that doesn't exist in any standard lease or legislation in Australia - did you just make that up for convenience?

Or maybe the easier answer is that I'm right about it all.

 

You're assuming that I'm trying to control the Tenant, it has nothing to do with it. I'm trying to protect what's in my best interest, say I rent my home to 4 people, then they bring in each another person to the home that's 8 people in total. 8 people opening and shutting doors, cars all over the street annoying neighbours or parking on the lawn, there's a big difference in wear and tear on the property and then you have the issue of where you might not know they are in your home and you haven't updated your insurance of changes or made it void. You might be in the situation of renting a property to a sole occupant for a cheaper rate and then they bring in 2 other tenants, that type of action isn't very fair is it.

Then you have the issue of tenants not been vetted, so they could be on a blacklist and repeat what happened in the last home. I've been around rentals for over 45 years, I know what goes on in them and I'm far from a newcomer, I've seen the end result of trashed rentals and it's one thing you want to avoid at all cost. I'm not into rentals to try to lose money and a lot of people do lose money.

 

The scenario painted here is far removed from a single person having a partner move in with them during the tenancy. A case of creating a narrative to justify a point of view and unreasonable actions?

 

Wrong, not my point at all, if that's how you've misunderstood it, not my intention what so ever.