Subletting or assigning a lease
A tenant can have guests temporarily stay at their home without having to notify or ask permission from the landlord. A guest staying in the property is different to when someone moves into the property as a sub tenant or takes over the lease as an assignee.
Consent to sublet or assign a lease
Tenants must get written permission from the landlord before they sublet or assign a lease. It is a breach of the agreement if they don’t have consent. A breach notice can be served within 21 days of a landlord becoming aware of the subletting or assigning of a lease.
A landlord must have a good reason to refuse permission. A tenant can apply to the South Australian Civil and Administrative Tribunal to get permission if they feel the landlord is refusing without a good reason.
Subletting is when a tenant rents a room to another person. In this case, the tenant becomes the head tenant and has the same rights and responsibilities for the sub tenant as a landlord. A tenant must get written permission from the landlord before they sublet a lease.
A tenant who sublets will remain responsible for their agreement with the landlord. If the sub tenant damages the property, the landlord can claim against the head tenant. Then the head tenant can claim against the sub tenant.
Subtenants have the same rights and responsibilities as other tenants renting privately.
A landlord cannot:
- add conditions to the lease agreement that limit or deny the right to sublet
- refuse consent unless there is a good reason
- ask for any money to consider the request
- increase the rent because the tenant has sublet.
The tenant who wants to sublet is responsible for:
- finding someone to sublet
- getting the landlord's written consent
- collecting rent from the sub tenant
- making sure the sub tenant doesn’t cause or allow damage to the property
- making sure the sub tenant doesn’t cause or allow an interference with the comfort, peace or privacy of other residents or neighbours
- meeting all responsibilities as if they were a landlord, providing information brochures and inspection sheets.
Assigning is allowing another person to take over the lease agreement. It can be done if there is a fixed term lease and the tenant needs to leave before the end date.
The landlord must give written permission before a tenancy can be assigned. The landlord must also agree to accept the person taking over the lease as their tenant.
All information should be clearly detailed on the lease agreement and signed by the tenant, the landlord and the new tenant.
A tenant can be asked to pay reasonable costs, associated with assigning a lease, for instance land agent fees.
If the lease is assigned without the landlord's written consent the tenant will remain responsible for the lease agreement, even if they’re no longer living at the property.
When assigning a tenancy to someone else, the new tenant takes over the existing lease agreement and becomes responsible to the landlord for meeting all conditions listed.