There are a number of elements in the definition of a registrable boarding house.
First, the premises must fit the definition of ‘boarding premises’ (Boarding Houses Act 2012 (NSW) (the BH Act), section 4). This means that the premises are the principal place of residence for one or more lodgers. A lodger is a resident who is not an owner or tenant, or a guest or family member staying free of charge. (See section on Marginal rental for more on the definition of ‘lodger’.) So, it appears that a boarding house where each and every resident is actually a tenant is not a registrable boarding house.
Secondly, the premises must fit either the definition of a ‘general boarding house’ (section 5(2)) or the definition of an ‘assisted boarding house’ (section 37(1)).
A general boarding house provides beds, for a fee or reward, for five or more residents. If the proprietor or manager of the premises, or any relatives of the proprietor or manager, reside at the premises, these persons do not count towards the five-resident threshold.
An assisted boarding house provides beds, for a fee or reward, for two or more residents who have ‘additional needs’. This means residents who have age-related frailty, mental illness or disability, which is permanent or likely to be permanent, and which results in the need for care or support services involving assistance with, or supervision of, daily tasks and personal care (such as showering or bathing, the preparation of meals and the management of medication) (section 36). Residents residing with a competent relative do not count towards the two-resident threshold.
Note that in each definition, the premises provide beds (so it appears that if you have brought your own bed, you are not counted towards the five- or two-resident threshold); and the arrangement must be for a fee or reward (so if you are staying free of charge, you are not counted towards the threshold).
Boarding premises that fit neither definition are not a registrable boarding house.
Thirdly, numerous types of premises are expressly excluded from both definitions (sections 5(3) and 37(2)). The following premises cannot be registrable boarding houses:
- Premises used as a hotel, motel, bed and breakfast or backpackers hostel
- Serviced apartments
- Accommodation for workers in connection with their employment
- Accommodation used by an educational body for its students
- Social housing premises
- Retirement villages
- Public hospitals, mental health facilities, nursing homes and aged care facilities
- Premises used for refuge or crisis accommodation provided by public authorities and other organisations and funded by the Commonwealth or State governments.
Registrable boarding premises can be in virtually any physical form (premises are defined to include a ‘vehicle, vessel or aircraft’!). Also, boarding premises that fit the definitions but are operating unlawfully (for example, without the required consent of the local council) are still registrable boarding houses and covered by the BH Act.
If premises are leased to a tenant, and the tenant sublets them to lodgers in a way that fits the definition, the premises are a registrable boarding house and the tenant is the proprietor (section 4).