Undeclared phantom tenant... what to do?

No, I did read that on a RTA site somewhere and it did list something about different states and territories had different rulings on it, I'll see if I can find it again and link it.

 

Mostly my insurance policy does seem to cover guests:

View attachment 38683

 

Have a look at this, I switched over early last year with a 4 bedder.

 

There seems to two separate themes going on here.....

1. A property with more tenants resident than stipulated, and

2. A property seemingly having more tenants than stipulated aka the undeclared phantom tenant.

Because point 2 is all but impossible to address, point 1 is purely academic and has little practical purpose.

 

FWIW, I'm also a lawyer, and @thatbum is 100% correct.

You're letting the premises, not housing a number of people. If you let it cheaper because you consider it "under occupied" that's a risk you choose to take. (ie that there will always be that number in residence)

That's the problem of the person or people who are on the lease; they're accepting responsibility for all who live there.

Respectfully, no. It's a civil matter, you only have to establish residency on the balance of probabilities, which isn't too challenging. The more legally significant issue is that the number of residents is a moot point (in the absence of fire hazard etc).

 

OK, here they're saying they don't cover multi-tenancy properties, eg with multiple agreements. An example: share house of 4 young people where each has only one bedroom and has their own agreement with you for just their room. That's 4 tenancies. No good!

If all 4 move in on one rental agreement, that's a single tenancy. No problem!

Re more than 3 tenants, again, they don't mean individuals residing there, they mean tenancy agreements. If you're churning through tenancies that quickly, it's a sign your property has issues.

If you don't believe me, feel free to ring and ask the insurer.

 

@Perp & @thatbum

Why would they have 'how many people can reside on the property' on RTA tenancy agreement, if it's not complying with laws, shouldn't it be removed ? What makes it not legal binding ?

I stand corrected on that one too, you are right @thatbum it was a US site, I had few of the pages opened at once didn't realise.

 

As I said earlier in the thread, it's there so that you can communicate legal or fire occupancy limits to the prospective tenant and possibly protect yourself from legal liability if the tenant exceeds it. If you say that the safe occupancy for fire purposes is, say, 8 (or whatever's reasonable for a 4 bedder), and a tenant is killed in a fire because 12 were crammed in and escape became difficult, having communicated that limit may help protect you from manslaughter charges / negligence lawsuit.

 

The only other potential come back that xCAT may consider reasonable is excessive wear and tear above what was agreed in the contract by way of more people then originally intended (same for pets etc), and again, this gets tricky because wear & tear isn't damage but you need to prove it is damage as a result of it being excessive due to the increased number of occupants which was against the spirit of the agreement.

Ps. I'm not a lawyer, that's just how I would approach it if in this position and had to try..

 

Thanks for giving an honest answer.

Just out of interest, I checked some of my 18a agreement forms for the 4 & 3 bedders and both list 1 room per tenant, it's a bit ironic how it's ignored when they make you spend thousands updating smoke alarms and another thing all my Tenants are listed on the agreement. I've never asked the PM to do so and I had a Mum and Daughter move in to relocate for work and a few months later their partners both moved in.

 

What do you mean "make you spend thousands updating smoke alarms"? The building code and the Fire and Emergency Services legislation sets out where smoke alarms are in both rentals and PPORs, who is this "they"? And are you actually complaining about people's partners moving in?

Seriously, you do not have the right mindset for owning rentals. This level of need to be in control is not conducive to a business investment.

 

What I'm explaining is that maximum allowable occupancy for a home that's worked out from a safety point of view can be overlooked when a tenant signs an agreement that they will comply to the regulations but leaving smoke alarms in a home that have been legit for years and not out of date is not, because they changed the standards making LL's upgrade to a new system. My rentals are looked after by registered PM's everything as far I know is done legit and what I do with my investments is none of business.

 

The issue is that you're not basing your specified maximum occupancy on anything but your desires, which renders it void.

You have the opportunity to protect yourself from potential liability by listing a legitimate number, but are choosing to forgo this opportunity. (Which may also impact on your insurance.)

The 'somebody' who needs to be fixing something here is you!

 

All been done by registered PM's AFAIK, I checked a few agreements from different PM's over the years and the numbers are the same. Would the person filling out that part of the agreement need a competency or guided by someone that has in the required fields like engineering, fire safety and or evacuation ?

 

Probably, if you want it to be accurate.

"Registered PMs" get something like a few day's worth of formal training to get their registration, and I think only half a day is residential tenancy law (crazy), and zero days on building/safety compliance.

 

Ideally, yes, but I would personally use any number that I could justify in a reasonable fashion, eg maximum of (2 people x number of *legal* bedrooms) and any occupancy limit that was imposed during construction/renovation.

It's probably more important why and how I determined that number, than specifically what the number is. I'd record - via email to PM or myself - how I came up with the number.

Obligatory 'not legal advice'.

 

Can confirm, it's a joke - Cert IV in less than 8 days lol, learn next to nothing. The buck stops with the principal licencee. In this day and age, I would have a very tight & overseeing leash over my staff (if I had staff) and it was my neck on the block for their actions. A lot of penalty units in the Acts.....

 

The OP didn't elaborate on this.......
Landlord's often complain about the PM
It isn't very often that you hear of a PM ditching a landlord

 

Not so much ditching, I'd suspect it's more along the lines of a large agency with staff changes.

 

Yeah, that's what usually happens and sometimes they do circles and come back to the same place.