31 October 2022

As the cost of living rises and rental markets tighten, more tenants may consider taking on a roommate to relieve some of the financial pressure.

Before entering into a shared tenancy, it is crucial that all parties understand the arrangement they have signed up to. Laws around subletting differ across each state and territory’s residential tenancy legislation. Let’s look at some of the general rules that apply to most Acts and Regulations. Later, we will identify the legislation that regulates subletting across each state and territory.

Requesting permission from the landlord

Generally, a tenant must not sublet the premises without the landlord’s written consent. The first step of subletting should involve the tenant contacting the landlord or property manager to request permission to sublet the premises.

A tenant subletting without permission is a ground for the landlord to seek to terminate the tenancy agreement. Additionally, where a tenant sublets the premises without permission, the subletting arrangement will be legally unenforceable, meaning the person to whom the property is sublet will not have any rights as a tenant.

Can the landlord say “no”?

In most cases, the landlord may not unreasonably refuse a tenant’s request to sublet. Reasonable grounds for refusal may include:

if the prospective sub-tenant is listed on a tenancy database
if an additional occupant would result in the total number of occupants permitted under tenancy agreement being exceeded

A tenant may apply to their relevant state or territory’s civil and administrative tribunal if they believe a landlord’s reasons for refusal to be unreasonable.

In states such as Western Australia, a residential tenancy agreement may prohibit a tenant from subletting the premises. A tenant may still request permission, and the landlord may decide to alter the term prohibiting the tenant from subletting.

Costs

A tenant cannot be charged a fee by the landlord or agent to sublet.

Changing bond records

Co-tenants can pass bond money between themselves. Residential tenancy law in some states/territories requires the completion of a “shared tenancy” form to update bond records.

Two new roommates taking a break from unpacking, sitting on the floor enjoying a cup of tea or coffee, chatting. — Co-tenants can pass bond money between themselves.

Information to be provided to sub-tenant

Once a tenant has been given the all-clear to bring on a sub-tenant, they become the head tenant, essentially acting as the sub-tenant’s “property manager”. They must ensure they meet their requirements as the head tenant and protect the rights of the sub-tenant.

This may involve providing the sub-tenant with:

a copy of the residential tenancy agreement,
any relevant state/territory-mandated renting guides,
an entry condition report to complete and return to the head tenant, or
a receipt for payment of bond.

In some states/territories (such as the Northern Territory), the landlord/property manager is responsible for providing documentation like this to the sub-tenant.