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.
Key Takeaways
- Subleasing allows a tenant to lease part or all of their rental unit to another person (the subtenant), but the original tenant remains responsible for the rental agreement with the landlord.
- Landlords can prohibit or restrict subleasing through a clause in the original lease agreement. Without such a clause, tenants have a common law right to sublet.
- If the lease prohibits subleasing, the tenant cannot sublet without breaching the agreement. If it only restricts subleasing, the landlord cannot unreasonably withhold consent to a subtenant.
- Reasons a landlord may reasonably withhold consent include doubts about the subtenant’s ability to pay rent or concerns the subtenant may damage the property.
- Even with a sublease, the original tenant remains responsible to the landlord if the subtenant fails to comply with the head lease.
- Tenants unsure about their lease terms should seek legal advice before subletting to understand their rights and obligations.
Frequently Asked Questions
Can I sublease without permission from my landlord?
No, if your lease prohibits subleasing you cannot sublet without breaching the agreement. If the lease only restricts subleasing, you need your landlord’s consent which they cannot unreasonably withhold. Check your lease agreement for the specific terms.
What is an unreasonable reason for my landlord to reject a subtenant?
Reasons like doubting the subtenant’s ability to pay rent or concerns they may damage the property are generally reasonable. Unreasonable reasons include personal objections unrelated to the lease or subtenant discrimination.
If I sublease, am I still responsible to the landlord?
Yes, when you sublease you remain fully responsible to the landlord for compliance with the head lease. If your subtenant violates the lease terms, you are liable to the landlord.
Can my landlord evict me if I sublease without permission?
If your lease prohibits subleasing and you sublet anyway, that is grounds for eviction. If subleasing is conditionally allowed, eviction is unlikely but the landlord could issue a notice to remedy the breach of contract.
What should I do before subleasing to a new tenant?
Review your original lease, seek legal advice about your subleasing rights, screen potential subtenants carefully, draft a sublease agreement, and obtain written consent from your landlord before finalizing the sublease contract.
Call Barwick Boitano today on (02) 9630 0444 or email on fjb@bblawyers.com for an appointment.
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