TenantsTips / Australia / Want to sub-let your rented property?

Want to sub-let your rented property?

This article offers tenants advice and information relating to the transfer and sub-letting of rental properties.

Can I transfer or sub-let a rental premises?

As a tenant covered by the Residential Tenancies Act 2010 it may be possible to transfer your tenancy agreement to another person or sub-let the property to another person. However, to do this you will need to obtain the written consent of your landlord. Your landlord is obliged to honour your request to transfer or sub-let if either of the following apply:

 

  • One of the original tenants of the current tenancy agreement will remain a tenant at the property.
  • Your request is to sub-let and you will remain in occupation of the property.

 

Asking for a landlord’s consent to transfer or sub-let:

In order to obtain a landlord’s consent to transfer or sub-let you should put your request in writing. You should also provide your landlord with a draft transfer or sub-letting document (whichever applies) which includes the details of the proposed tenant or sub-tenant. Your proposal should also include evidence that demonstrates that the proposed tenant/ sub-tenant has the means to pay the rent and is of good character. A pay slip or bank statement and a personal reference should suffice.

If the landlord grants their consent they are required to sign and date the consent document and return it to you.

What if the landlord withholds consent?

The landlord may withhold their consent in the following circumstances:

 

  • A tenant database lists the proposed tenant or sub-tenant deeming them a risk.
  • The number of proposed occupants exceeds the number of occupants allowed according to the tenancy agreement or allowed by planning laws.
  • The landlord is of the opinion that the property will be overcrowded.

 

If the proposed transfer or sub-letting is for the duration of the whole tenancy or for the whole property the landlord has the right to withhold consent.

If your landlord withholds consent and you believe that the decision is ‘unreasonable’ you can apply to the NSW Civil and Administrative Tribunal for an order to allow the transfer or sub-let. Applications to the NCAT must be made within 3 months of your landlord’s refusal to grant consent.

How does transferring or sub-letting affect my rights?

Transferring:

Your legal liability for a tenancy ends when you transfer the tenancy to another person and vacate the premises.

Sub-letting:

If you are a tenant renting a part of a property to another person (sub-tenant) under a separate written tenancy agreement you are the head- tenant. A head-tenant resumes the responsibilities of a landlord in relation to the sub-tenant.

Likewise, any person who rents part of a property from a head-tenant under a written tenancy agreement is classified as a sub-tenant.

If you are unsure about your duties, rights and responsibilities as a head-tenant you can seek advice form NSW Fair Trading.

Tenancy agreements:

A written tenancy agreement protects the interests of both the head-tenant and the sub-tenant. A written tenancy agreement ensures that tenants have rights under the Residential Tenancies Act 2010 and that the NCAT may assist should any disputes arise.

Bonds:

Transfer:

In the case of a transfer the names of the tenant(s) registered for a bond can be changed by completing a ‘Change of Shared Tenancy Arrangement’ form. These are available from New South Wales Fair Trading. The outgoing tenants, incoming tenants and the landlord should sign the form and return it to NSWFT.

Sub-letting:

Sub-tenants may or may not pay bonds depending on the individual circumstances in which the sub-tenancy was created. If a decision is made whereby the head-tenant and sub-tenant agree that the sub-tenant will pay a bond the head-tenant must do the following:

 

  • Supply the sub-tenant with a receipt for the bond payment.
  • Deposit the bond with NSWFT within 10 working days of receiving the payment.

 

The maximum bond that a sub-tenant can be asked to pay is the equivalent of 4 weeks of their rent.

Further information:

If you are unsure about your rights in relation to transferring or sub-letting a tenancy you can seek further information and guidance from the following organizations:

Tenants Advice & Advocacy Service



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