Leases, bylaws and short term rentals

This is a tricky issue and it depends on a number of things …… they are ‘tenants’ if the document that they may sign is considered a ‘lease’, but they may not be ‘tenants’ if the document they may sign is considered a ‘licence’.

There are subtle differences that may rest on the formality or the informality of the agreement, and issues such as whether there is ‘exclusive possession’ of the premises or not, or whether the ‘possession’ can be readily terminated.

The mere use and occupation of a single bedroom and a bathroom within a larger residence and where the owner remains on the premises would most probably be considered a ‘licence’ rather than a ‘lease’. This is clearly not ‘exclusive possession’ of the premises.

However, it gets into a ‘grey’ area if the owner has locked off a bedroom to store their own possessions in, or has locked the garage to store their vehicle in …… perhaps this is not ‘exclusive possession’ of the premises either as the owner may be able to access these areas of the premises during the term of the agreement ……  therefore the agreement may also be viewed as a ‘licence’ rather than a ‘lease’.

Each situation may be treated differently by the courts depending on the circumstances.

The following link may assist.

https://www.netlawman.com.au/ia/lease-or-licence-which-is-right-for-me

Whether the agreement is a lease or a license I would think that there should at least be some sort of signed ‘code of conduct’ agreement, and at most there should be a signed declaration that the by-laws have been read, understood, and will be complied with.

And here is a Victorian perspective http://www.hlp.org.au/page/803/is-your-client-a-tenant-resident-or-licensee-

and

https://www.hopgoodganim.com.au/page/knowledge-centre/court-decision/the-supreme-court-of-victoria-decides-that-an-airbnb-rental-is-a-lease-and-not-a-licence