Lodging agreements at common law

At common law, a lodger’s right to occupy premises is given under an agreement known as a licence. A lodger’s licence is a contract, nothing more or less. The terms of this contract are those that the lodger and landlord have bargained for; in practice, this means that the terms are decided by the landlord.

A licence may be written, or oral. Where there is uncertainty as to the terms of a licence, the law will regard the licence as having such terms as the parties reasonably intended, and such terms as are necessary to make it effective as a contract.

The periods of notice required for rent increases and termination are those set out in the licence. If none is set out expressly, it is reasonable to assume that the period for which rent is paid is the relevant period both for rent increases and for termination.

A lodging licence terminates on the date given in the termination notice. If you stay past the termination of your licence, you may be evicted by the landlord. No order or warrant is needed. The landlord may use force to remove you, but no more than is reasonable (Imperial Acts Application Act 1969(NSW), section 18).

Where there’s a breach of a term of a contract, the main remedies provided by the common law are termination or compensation for the injured party’s losses (‘damages’). Claims for damages may be pursued through the courts (usually the NSW Local Court, but larger claims go to the NSW District Court or the NSW Supreme Court). If you want specific performance of the agreement (for example, an order that the landlord allow you to occupy the premises), you can apply to the Supreme Court, but beware: Supreme Court proceedings can be very expensive, and this remedy is very difficult to get.