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How Boarders and lodgers can access the NCAT General Division

If you are not a tenant and you can show that your landlord is in the business of selling accommodation you may be able to apply to the General Division of the NSW Civil and Administrative Tribunal if you’ve been ripped off.

Check your status
First, you need to check your legal rights. Click here for an indication what your housing status is, Talk to EATS to confirm your status – our contact details are in the right side panel.

To access the General Division of the Consumer, Trader and Tenancy Tribunal you must have:
Landlord’s contact details including an ABN (Australian business number) or ACN (Australian company number)

You must have the name and a real home or business address of your landlord. The name can be a business name.  You can search for ABNs and ACNs at http://abr.business.gov.au.

You have a contract to pay for accommodation
You must be able to show that you had a contract with your landlord for a room(s) to live in and sometimes other services. The contact doesn’t have to be in writing, but in most cases where a resident is successful, it is. You will need a copy of the written contract.
You will also need to be able to show that the contract you had is the same as the landlord regularly gives to others they provide the service to. You need to be able to show that your contract was not a “one-off” arrangement.

The landlord was in the business of providing accommodation
Although there is a general assumption that the landlord will be providing the service as part of a commercial business it is important to have proof that this is the case. This could include the following:

  • Copies of advertisement of the services, such as online advertisements;
  • Photographs of any signs declaring the premises to be a ‘Boarding House’, ‘Hostel’, ‘Private Hotel’ etc;
  • Statements from other people who also paid to live at the premises;
  • A copy of the agreement and receipts for money paid by you;
  • Photographs of the premises showing shared facilities, multiple bedrooms etc;
  • Phone book listings

The landlord did something contractually wrong
Lots of people do lots of wrong things a lot of the time. Most of the time these things are not illegal or unlawful.

If you are seeking a remedy in the NCAT for something your landlord has done, you need to be able to show that the landlord broke the contract you have or had with them, or otherwise acted unlawfully. The types of actions you could have include:

  • The landlord failed to do something they undertook to do in the contract with you;
  • The landlord acted in a deceptive or misleading way to get you into the contract
  • The contract contained parts that were not lawful or were unfair contract terms
  • The accommodation provided was not fit to be used as accommodation.

You suffered a loss that NCAT can fix
For a successful claim in NCAT you will need to show that as a result of one or more of the items in the section above, you suffered a loss for which there is a legal remedy. If there is no loss then you cannot get a remedy at the NCAT.

In most cases this will involve the payment of money ... a refund for services that were paid for but not provided, or for failure to comply with a part of a contract. It is generally not practical to expect the General Division to order a party to do something specific, such as carry out repairs, in matters involving rented housing or accommodation.

The types of orders that the NCAT can make could include:

  • A refund of money paid.
  • Refund of a security deposit if the resident complied with the terms of the agreement.

Evidence requirements
As with all other courts and Tribunals, the NCAT makes it decisions in accordance with the law and evidence.

Evidence is something that you have your possession that you can copy and take to the NCAT when your hearing comes up.

It should include things like written copies of signed contracts, photographs, reports by experts or others people with accepted credentials, written quotes, receipts etc. In 99% of cases, a “logical” argument – “of course we had a contract, because I was staying there” is not considered good or strong evidence.

Link
Follow this link for a copy of the NCAT General Division application form, which sets out what you need for your application. Once you have all the information you need, you can also apply on line through the NCAT website. Remember to talk to EATS about your tenancy status and your application.