VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
civil DIVISION
OWNERS CORPORATIONS LIST	VCAT REFERENCE NO. R2022/25614
CATCHWORDS	
Application to create tenancy — s91S — question of principal place of residence — House-sitting                            Agreement.   	

APPLICANT	Jamy Alex	
RESPONDENT	Director of Housing	
WHERE HELD	Melbourne	
BEFORE	P. Tyler, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	12 January 2023	
DATE OF ORDER	12 January 2023	
date of reasons	21 March 2023	
CITATION	Alex v Director of Housing (Residential Tenancies) [2023] VCAT 298	

Order

1	The proceeding is dismissed. 

P. Tyler 
Member			

APPEARANCES:		
For Applicant	Mr J Alex, in person
Mr M Varnis, Solicitor
Mr P Martin, Solicitor	
For Respondent	Ms B Gaetnai, Tenancy and Property Officer
Ms Amos	

Reasons
1	The applicant, Mr Alex, was represented by Justice Connect and, in December 2022, the Tribunal was provided with a submission on his behalf. The submission was in relation only to this proceeding and a request was made for written reasons.
2	These reasons relate to the application under section 91S of the Residential Tenancies Act 1997 (RTA).
3	The rented premises are 144/126 Racecourse Road, Flemington and are the property of the respondent, The Department of Families, Fairness and Housing (formerly the Director of Housing) (DFFH). 
4	Geskeva Komba commenced living at the rented premises in around May 2017 through a tenancy agreement with DFFH.
5	On or about 25 February 2022 the applicant, Mr Alex, entered into a written agreement in respect of the premises with Ms Komba.
6	Significant features of the agreement are that:
a.	It carries the title of “House Sitting Agreement.” 
b.	It commenced on 25 February 2022.
c.	The duration of the agreement was until 20 May 2022 unless Ms Komba agreed to extend the term, at her discretion.
d.	Mr Alex was referred to as “the house sitter.”
e.	The document specifically stated that it was not a lease.
f.	The document also stated that it was the grant of a licence for Mr Alex to occupy the premises and that he had no legal interest in the premises whatsoever.
g.	The agreement refers to Ms Komba as “the renter.”
h.	Mr Alex was to pay $1480.00 to Ms Komba (for reasons that are not specified) and then fortnightly payments of $740.00, along with utility expenses.
i.	Mr Alex could not assign his interest in or sub-let the premises.
j.	Ms Komba could give 7 days’ notice of termination of the agreement.
7	On 19 July 2022 Ms Komba was served with a Notice to Vacate under section 91ZV of the RTA and on 2 August 2022 Ms Komba ended the tenancy by handing back her keys to DFFH.
8	On 8 August 2022 DFFH applied for a possession order under section 344 of the RTA as Mr Alex was still occupying in the premises.
9	In early September 2022 Mr Alex lodged this application under section 91S of the RTA seeking an order requiring DFFH to enter into a lease with him.
10	At the hearing Mr Alex said that he is the sole occupant of the premises, however, his three young children stay with him for short periods from time to time.
11	He finds it difficult to access the premises and the building in which it is located because he does not have a door key or a fob for the main doors.
12	He has been looking for rental properties elsewhere through the private and public sectors. 
13	He left his previous accommodation because he was unable to afford it and a possession order had been made. He said he was therefore in a “desperate” situation and a work colleague introduced him to Ms Komba. 
14	Other than three payments to Ms Komba after 25 May 2022, he has not paid any rent or occupation fee to anyone.
15	He has moved a large amount of his own furniture into the premises.
16	His address on his driver’s license is his former residence in Dandenong although he had given details of the address to Centrelink.
17	Mr Alex said that he was told the agreement he signed was a rental agreement and that he did not understand it.
18	In relation to this application, section 91S of the RTA states as follows:
A person who has been residing in rented premises as that person's principal place of residence and who is not a party to a residential rental agreement applying to those premises may apply to the Tribunal for an order requiring the residential rental provider of the premises to enter into a residential rental agreement with the person if…. an application for a possession order for the premises has been made under Part 7 or …..the renter has delivered up vacant possession of the rented premises.
19	An application for possession had been made by DFFH and the renter, Ms Komba, had delivered up vacant possess prior to the date of the application.  
20	I found that Mr Alex was very competent in the English language and that he understood the basis of his occupation of the premises.
21	The question therefore is whether the premises were the principal place of residence for Mr Alex.
22	The RTA does not provide a definition of “principal place of residence”.
23	I do not consider the premises to fall within the category of the renter’s principal place of residence for the following reasons:
a.	The agreement signed by Mr Alex makes it clear that it was a license to occupy, that it was for a short period of time and could be terminated at the sole discretion of the other party. That is, it was of a temporary nature. The parties were unable to tell me how this type of arrangement differed from an AirBnB arrangement.
b.	During his occupation of the premises, Mr Alex continued to look for other accommodation and had in fact, submitted an application to DFFH.
c.	Given that he had difficulty accessing the premises without a key or fob to the building demonstrates that he did not have exclusive possession of the premises.
24	The Tribunal considers the fact that Mr Alex has not changed his address in his driver’s license was because he saw the accommodation as being temporary.
25	I find that the premises were not the principal place of residence of the applicant. Accordingly, the application is dismissed.

P. Tyler
Member