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Total control or exclusive possession?

Total control or exclusive possession?

By Bill Swannie

Courts Judgment Landlord & Tenant 

A recent Supreme Court decision shows that certain home sharing arrangements may be grounds for eviction under the Residential Tenancies Act, however there is still much uncertainty for tenants and their guests. In the recent decision of Swan v Uecker (Swan),1 the Supreme Court of Victoria held that a landlord can evict a tenant under the Residential Tenancies Act 1997 (Vic) (RTA) when the tenant has offered the rented premises on the home sharing service Airbnb. The Court found that this amounted to subletting the premises, which is grounds for giving a notice to vacate (NTV) and seeking possession of the premises through the Victorian Civil and Administrative Tribunal (VCAT). This decision was based on, and seemed to expand, the concept of “exclusive possession” under residential tenancy law. As the Court emphasised, exclusive possession is an essential aspect of subletting under the RTA. Only if a tenant has granted exclusive possession to another person (such as a visitor or guest) can they be found to have sublet the premises. The concept of exclusive possession has a much greater significance in residential tenancy law, however. More broadly, it determines whether a lease has been created between two parties (even if neither party expected or intended this result). The Swan decision, therefore, potentially extends the scope of the RTA to include many home sharing arrangements which previously were not considered to be covered.

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