As Australia grapples with an unprecedented rental crisis, a terrifying scenario has emerged for one tenant: facing eviction after their adult son, who lost his job, moved back home.
The personal plight highlights a broader issue in the current housing climate, where the lines between a casual guest and a permanent occupant are increasingly blurred, leading to both legal headaches and financial disputes, particularly in shared living arrangements.
The distressing situation was brought to light in a Yahoo News weekly Q&A legal column, where a concerned tenant shared their predicament.
“My adult son lost his job and needed a roof over his head, so he moved back in with me for a while. Now my landlord says I’ve breached the lease by having an unauthorised occupant. Surely helping your own child doesn’t mean eviction? Or does it? It is all pretty terrifying to be honest,” the tenant wrote.
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An Aussie renter fears they may end up in a long queue of people searching for a new home after receiving a breach notice from their landlord. Source: Getty
Legal experts Alison and Jillian Barrett from Maurice Blackburn acknowledged the confronting nature of receiving a breach notice, but clarified that whether it constitutes a breach, and if eviction is a genuine threat, hinges on specific legal and practical considerations.
Guest or occupant: What does the law say?
Across most Australian states, tenants are generally permitted to have visitors for a “reasonable period” without requiring the landlord’s consent, the experts argued.
The complexity arises when a visitor transitions into an “additional occupant” or “resident.” Lease agreements frequently specify named occupants or impose a maximum number of people allowed to reside at the property.
The legal experts advise that adding someone long-term typically necessitates the landlord’s written consent.
Alison and Jillian Barrett are Principal Lawyers at Australia’s leading plaintiff law firm, Maurice Blackburn.
Crucially, in many states, this consent “must not be unreasonably refused.”
This legal nuance is not just affecting parents and their adult children; it’s also playing out in the increasingly common share house dynamic.
With rents rising and more Australians sharing homes well into their thirties, the informal rules of cohabitation are under pressure.
What begins as a straightforward 50/50 rental agreement can quickly blur when partners enter the picture, particularly when overnight stays start to feel less occasional and more permanent.
The share house dilemma: When a partner becomes a problem
Consider the situation facing a 36-year-old man who took to social media, questioning if he was being unreasonable for asking his roommate’s boyfriend to contribute to household bills. He lives with a 30-year-old female roommate, and they split rent and utilities evenly. However, over the past few months, her boyfriend has been staying at the apartment five to six nights a week.
The boyfriend showers, cooks, and does laundry at the property, and has increasingly begun spending his days there as well.
“It feels like we basically have a third person living here most of the week,” the flatmate wrote on Reddit.
The issue around who and what constitutes a paying tenant is widespread.
He noted that both electricity and water bills have increased since the boyfriend began spending most of the week at the apartment.
What was once an occasional overnight visit now resembles something closer to unofficial cohabitation, raising questions about fairness, boundaries, and the unwritten rules of adult share living.
“I brought it up calmly and asked if we could either limit overnights to a few nights a week or have him chip in for utilities since he’s here so much,” he explained.
“I suggested a simple split like making utilities closer to one-third each if he’s here more than half the week.”
His roommate, however, did not see it that way.
She accused him of “counting nights” and being controlling, arguing that she pays her share of the rent and is entitled to have guests whenever she wants.
Distinguishing a ‘guest’ from an ‘occupant’
The lawyers outlined several relevant factors tribunals consider when determining if a child, or indeed any regular visitor, is classified as a guest or an additional occupant.
These include the duration and pattern of stay, questioning if the stay is brief and temporary, or open-ended.
A matter of weeks is more likely to be considered a guest situation compared to months. Another key factor is the integration into the household, such as whether the son has moved most of his belongings in, receives mail at the address, and treats the property as his primary home.
Legal experts advice tenants to review their lease agreement for clauses regarding additional occupants or maximum occupancy limits.
The lease terms and numbers are also important, specifically if the existing lease agreement stipulates a cap on occupants.
Finally, money flow is a consideration; subletting is distinct from a family member staying, and if the son is not paying rent directly as a subtenant, it strengthens the argument for him being a guest.
However, his contribution to other household expenses is also a relevant consideration.
“If the stay is brief and clearly temporary, it’s more likely to be a guest situation,” the experts stated.
“If it’s indefinite or extended, you should seek written consent to add him as an occupant.”
When can a landlord refuse consent?
While landlords can require consent for additional occupants, this consent cannot be unreasonably withheld.
The reasonableness of a refusal depends entirely on the circumstances.
Potentially reasonable refusal could occur where an additional occupant would cause local council or strata occupancy limits to be exceeded, or where the property is too small for additional people, leading to a crowding issue, or where increased wear and tear inconsistent with the size of the premises would occur.
Conversely, examples of likely unreasonable refusal include refusing simply because the landlord “merely doesn’t like the idea” of another person living there, refusing without genuinely considering the request, or refusing where the property is clearly suitable for an additional occupant, such as when there is a spare bedroom.
Immediate steps for tenants
For tenants facing a similar situation, the legal experts provide clear advice.
Firstly, immediately review your lease agreement for clauses regarding additional occupants or maximum occupancy limits.
Secondly, put your position in writing to your landlord.
Thirdly, if you receive a formal breach notice, it is imperative to respond immediately.
Lastly, if you wish to dispute a breach notice, you can apply to the civil and administrative tribunal in your state, such as NCAT in NSW, QCAT in Queensland, or VCAT in Victoria.
Eviction: The process
Regarding the tenant’s fear of eviction, the lawyers reassured that “a landlord generally can’t just evict you.”
They must adhere to the specific process of the state you reside in, which typically involves issuing a valid breach or termination notice, allowing the tenant time to remedy the concerns, and if the issue remains unresolved, applying to the state civil and administrative tribunal.
At a tribunal hearing, whether for an eviction or to dispute a breach notice, the tribunal will weigh various factors.
These include reasonableness, the tenant’s evidence (emails, dates, details about the son’s arrangements), the lease terms, and whether any actual harm was caused (e.g., noise or overcrowding).
“Ultimately, you should act quickly,” the experts advised.
“If your landlord is unreasonable, seek advice from your state’s tenancy authority and be prepared to defend your position at tribunal.”
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