A boarder or lodger is a licensee who is merely licensed to occupy part of premises for consideration. If a 'landlord' retains control of the building the occupier will be a lodger. Boarders are usually provided with services in addition to accommodation, such as meals, washing and cleaning. Usually a boarder or lodger has no exclusive legal right to possess the occupied area, although this may not always be so. Generally, the owner retains control of the premises, with the lodger or boarder having restricted rights. In either case a boarder or a lodger is not afforded the protection of the Residential Tenancies Act 1995 (SA) [s 5(b)]. Similarly, lodgers of a tenant have no rights against a landlord.
Problems often arise where a landowner shares premises with another. The few court cases that have dealt with the topic, such as the South Australian Supreme Court case of Noblett v Manley (1952) SASR 155, have emphasised the element of control. While there is no presumption that a person sharing a house with the owner is not a tenant, it may be difficult to establish a tenancy without proof of exclusive occupation over a long period. To determine whether a lease or licence situation has arisen it is important to look at the intention of the parties and whether there is evidence of control over the property.
A written agreement between the parties is not essential but may help avoid and resolve any disputes.
The protection given by the law to a licensee is much less than that given to a tenant. The same may be said for the owner or licensor as opposed to a landlord. For example, an owner having difficulty recovering payment from a boarder or lodger or terminating an agreement and evicting a boarder or lodger would need to take court action. Most disputes would be heard in the Magistrates Court, depending on the nature of the claim. These cases are likely to be decided according to common law, where the court may consider the intention of the parties, their agreement (verbal or written), the particulars of their arrangement, evidence of control over the property and so forth. A boarder or lodger can rarely take court action to stop the owner or licensor from terminating the agreement and evicting them. In most cases, the only remedy is an action for damages, that is, compensation for breaching the licence agreement.
The distinction between boarders and lodgers and tenants is often difficult and legal advice should be sought.
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