I am currently in a rental property that I was sharing with my partner. (we have since split-up) The rental agreement was in my name only, so I am now stuck having to pay the full rental on my own.
As I have a spare bedroom, a friend suggested that I sublease the room to her, but I don’t think my current lease will allow for this. What should I do?
Subleases are commonly used in relation to rental property.
If a sublease is created, it does not affect the rights between the tenant and the landlord. However, the creation of a sublease does produce a situation where a simultaneous relationship between the landlord and the tenant, as well as the landlord and the subtenant, has been established.
Can landlords prevent a subleases
A common law right does exist which allows for a tenant to sublet their rental property, however, it is common practice for a covenant in a lease, which does not allow for, or restricts a tenants ability to create a sublease.
If a common law right does exist for a tenant to create a sublease, or there is an absolute prohibition preventing a tenant from assigning a sublease, there is no impediment for a tenant to sublet their proposed part property in regards to the rental property.
However, if there is an agreement between the landlord and the tenant, which contracts out their common law right to sublet the property, then any action in which the tenant sublets their interest in the property will be considered as a breach of the covenant.
Contrary to a covenant against subletting the property by a tenant, he or she is able to do so and the landlord cannot unreasonably withhold consent. The common law will deem consent to a sublease as unreasonable when:
- The reason for withholding consent has nothing to do with the relationship between the landlord or tenant in regards to the subject matter of the lease; or
- The tenant is respectable and responsible; or
- The reason outlined by the landlord for withholding consent relates to the effect of an action of assignment on potential investors.
In contrast withholding consent will be deemed as reasonable when:
- The reason for withholding consent is what a reasonable landlord might do under the circumstances; or
- The person in which the interest is to be assigned may use the lease to harm or injure property that is in close proximity to the property of the landlord; or
- The landlord has serious doubts in regards to the ability of the assignee to pay rent.
It is important to note, that if a lessee assigns a sublease, they are then assuming the responsibility that if the subtenant fails to honor the clause of the head lease, then the onus of the original lease will fall back onto the tenant.
If you have any doubts in relation to leases or contracts, you need to seek expert legal advice.
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