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Adelaide Adelaide Law Review Association TABLE OF CONTENTS THE UNIVERSITY OF ADELAIDE ADELAIDE LAW REVIEW ASSOCIATION ADELAIDE LAW REVIEW VOLUME 39 NUMBER 2 Adelaide Law Review Association Adelaide Law School The University of Adelaide Adelaide SA 5005 AUSTRALIA S U N B C E RUCE LUM THE UNIVERSITY OF ADELAIDE ADELAIDE LAW REVIEW ASSOCIATION ADVISORY BOARD Emeritus Professor W R Cornish Emeritus Herchel Smith Professor of Intellectual Property Law University of Cambridge United Kingdom Judge J R Crawford International Court of Justice The Hon Professor J J Doyle Former Chief Justice Supreme Court of South Australia Emeritus Professor R Graycar Sydney Law School The University of Sydney New South Wales Professor J V Orth William Rand Kenan Jr Professor of Law The University of North Carolina at Chapel Hill United States of America Professor Emerita R J Owens Adelaide Law School The University of Adelaide South Australia Emeritus Professor I Shearer Sydney Law School The University of Sydney New South Wales Professor J M Williams Adelaide Law School The University of Adelaide South Australia ADELAIDE LAW REVIEW Editors Associate Professor Matthew Stubbs and Associate Professor Judith Bannister Associate Editors Caitlyn Georgeson and Charles Hamra Student Editors Angas van Balen Nicholas Bannister Jade Bouchier George Bouras Ingmar Duldig Madison Forman Danielle Gilby Rachael Ingleton Gerald Manning Kyriaco Nikias Azaara Perakath William Stone Jasmyn Tran Lachlan Waldron Publications Officer Panita Hirunboot Volume 39 Issue 2 2018 The Adelaide Law Review is a refereed journal that is published twice a year by the Adelaide Law Review Association of the Adelaide Law School, The University of Adelaide. A guide for the submission of manuscripts is set out at the back of this issue. Articles and other contributions for possible publication are welcomed. Copies of the journal may be purchased, or a subscription obtained, from: Administrative Officer For North America: Adelaide Law Review Association William S Hein & Co Adelaide Law School 1285 Main Street The University of Adelaide Buffalo NY 14209 South Australia 5005 USA AUSTRALIA e-mail: <[email protected]> <http://law.adelaide.edu.au/adelaide-law-review> This volume may be cited as: (2018) 39 Adelaide Law Review The articles in this volume are published in 2018. ISSN 0065-1915 © Copyright is vested in the Association and, in relation to each article, in its author, 2018. TABLE OF CONTENTS ARTICLES Bill Swannie Airbnb and Residential Tenancy Law: Do ‘Home 231 Sharing’ Arrangements Constitute a Licence or a Lease? Sylvia Villios and Family Provision Law, Adult Children and the 249 Natalie Williams Age of Entitlement Greg Weeks Soft Law and Public Liability: Beyond the 303 Separation of Powers? Rami Hanegbi Superannuation Taxation Reform: From the 331 Financial System Inquiry Report to Legislative Changes Elizabeth Shi and Rethinking the Reinstatement Remedy in Unfair 363 Freeman Zhong Dismissal Law Lev Bromberg, The Vulnerability of Older Australians in 393 Ian Ramsay and Bankruptcy: Insights From an Empirical Study Paul Ali COMMENT James Morgan Dual Citizenship and Australian Parliamentary 439 Eligibility: A Time For Reflection or Referendum? REVIEW ESSAY Joel Lisk Space Law: A Treatise 453 CASE NOTES Kyriaco Nikias Dual Citizens in the Federal Parliament: 479 Re Canavan, Re Ludlam, Re Waters, Re Roberts [No 2], Re Joyce, Re Nash, Re Xenophon (2017) 349 ALR 534 Ingmar Duldig and Proportionality and Protest: Brown v Tasmania 493 Jasmyn Tran (2017) 261 CLR 328 Bill Swannie* AIRBNB AND RESIDENTIAL TENANCY LAW: DO ‘HOME SHARING’ ARRANGEMENTS CONSTITUTE A LICENCE OR A LEASE? ‘Airbnb is to the residential tenancy market what Uber is to the taxi industry — unregulated and controversial’.1 I INTRODUCTION n tenancy law, the distinction between a lease and a licence is fundamental. A lease confers an interest in land; it can be transferred, and confers rights enforceable Iagainst all the world. A licence, on the other hand, merely permits a person to enter onto land, or to do something in relation to it, without being sued. A licence can be withdrawn at any time, and it is not regulated by tenancy legislation or property law generally. Although the distinction is well established, characterising particular housing arrangements2 as involving either a lease or a licence can be problematic. At common law, the existence of a lease depends on whether exclusive possession was conferred on the occupier. Primarily, this involves examining the terms of the agreement between the parties.3 As leases can be created with little formality, a purely verbal agreement may give rise to a lease. On the other hand, a detailed written agreement may explicitly state that the arrangement is a licence and not a lease. A body of case law exists — in both Australia and the United Kingdom (“UK”) — regarding the factors relevant to characterising an arrangement as either a licence or a lease. While these decisions state general principles, they also tend to focus on quite specific factual issues, and accordingly they are not easy to reconcile or apply. * Lecturer, College of Law and Justice, Victoria University. The author has published a number of earlier articles on the same general topic as this article (though with significant differences in focus) regarding home sharing arrangements. These are: Bill Swannie, ‘Trouble in Paradise: Are Home Sharing Arrangements “subletting” Under Residential Tenancies Legislation? (2016) 25 Australian Property Law Journal 183; Bill Swannie, ‘Is House Sharing Grounds for Eviction? A Victorian Perspective’ (2016) 41(4) Alternative Law Journal 267; Bill Swannie, ‘Total Control or Exclusive Possession? Home Sharing Arrangements and Residential Tenancies Law’ (2016) 90 (11) Law Institute Journal 26. 1 Swan v Uecker [2016] VCAT 483 (24 March 2016) [1]. 2 Although there are many types of leases, such as pastoral, agricultural and mining leases, this article focuses on residential leases. The terms ‘tenancy’ and ‘lease’ are used interchangeably in this article. 3 Legally, a lease is both a contract and an interest in land. The dual nature of a lease is examined in Part IV of this article. 232 SWANNIE — AIRBNB AND RESIDENTIAL TENANCY LAW The legal consequences of characterising a particular arrangement as either a licence or a lease are, however, significant. Whereas a licence is merely a private agreement between parties, a lease automatically confers significant rights and duties on the tenant and the landlord. These rights and duties derive from the agreement, from common law, and from legislation. Perhaps most significantly, when an arrangement is characterised as a lease, it can be terminated only by following the strict process set out in residential tenancy legislation.4 The recent emergence of short-term ‘home sharing’, using online platforms such as Airbnb and Stayz, raises the issue of whether such arrangements should be char- acterised as either a licence or a lease. According to Airbnb’s ‘Terms of Service’, home sharing constitutes a licence.5 However, a recent decision of the Supreme Court of Victoria suggests that, in certain circumstances, a home sharing agreement may constitute a lease.6 Whether home share arrangements constitute a licence or a lease has significant legal consequences for hosts and for guests.7 These conse- quences —which may be unknown to most home share hosts — are examined later in this article. So far, there has been little judicial or scholarly examination of the legal status of home share arrangements with regard to tenancy law. The focus of most of the literature has been on broader policy issues regarding the regulation of home sharing, and particularly on balancing a person’s ability to make money from their property with minimising the negative effects of home sharing (particularly on neighbours).8 4 Not all leases are regulated by residential tenancy legislation. The strict process for termination applies only to leases that are so regulated. Each state and territory has separate residential tenancy legislation: Residential Tenancies Act 1997 (ACT) (‘Australian Capital Territory Act’); Residential Tenancies Act 2010 (NSW) (‘New South Wales Act’); Residential Tenancies Act 1999 (NT) (‘Northern Territory Act’); Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘Queensland Act’); Residential Tenancies Act 1995 (SA) (‘South Australian Act’); Residential Tenancy Act 1997 (Tas) (‘Tasmanian Act’); Residential Tenancies Act 1987 (WA) (‘Western Australian Act’). This article focuses on the legislation in Victoria and New South Wales, as these states represent the two main approaches to coverage in Australia. 5 Airbnb, Terms of Service cl 8.2 (16 April 2018) <www.airbnb.com.au/terms>. 6 Swan v Uecker (2016) 50 VR 74 (Croft J) (‘Swan’). 7 This article uses the neutral terms ‘host’ and ‘guest’, rather than the conclusory terms ‘landlord’ and ‘tenant’. 8 See, eg, Christopher Pearce, ‘The Search for a Long-Term Solution to Short-Term Rentals: The Rise of Airbnb and the Sharing Economy’ (2016) 35(2) University of Tasmania Law Review 58; Sharon Christensen and William Duncan, ‘Sharing Your Home in Queensland: Host, Landlord or Innkeeper?’ (2016) 6(2) Property Law Review 137; Michelle Maese, ‘Rethinking “Host” and “Guest” Relations in the Advent of Airbnb and the Sharing Economy’ (2015) 2 Texas A&M Journal of Property Law 481; David Kelly, ‘A Licence to Lease? The Common Law Status of an Airbnb “Stay” ’ (2017) 39(2) Bulletin (Law Society of South Australia) 20; Russell Cocks, To Be or Not To Airbnb (2016) 90(8) Law Institute Journal 60. (2018) 39 Adelaide Law Review 233 This article focuses instead on determining whether the relationship between home share hosts and guests is in fact currently regulated by residential tenancy law.9 This issue will inevitably present itself to Australian courts. Therefore, the applica- tion of residential tenancy law to home share hosts and guests will soon need to be considered. Ultimately, this article concludes that home share arrangements may constitute a lease, and residential tenancy legislation may apply to the arrangement, in certain circumstances.
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