The problems with subletting
Before subletting consider the following:
- Check your residential lease agreement to clarify whether subletting is permitted
- Read through your strata by-laws to get up to speed with the clauses concerning subletting
- If you own a property and suspect your tenant may be subletting, gather all the evidence you can to prove your permission wasn’t sought prior to the sublet taking place
- Also ensure you have adequate insurance in place, such as landlords insurance, to protect yourself against potential damage.
Offering a stranger the keys to your home can make sound economic sense, helping to spread existing costs or ensuring your rent remains covered in your absence.
But in the event your decision gets your landlord offside or your chosen tenant fails to respect your space, it can prove an expensive exercise.
Consumer Affairs Victoria says in a sub-letting arrangement, someone rents the property and, in turn, rents out part or all of it to another person or people. The person or people named on the lease are the head tenants and those renting from them are sub-tenants.
Unlike in a co-tenancy, a sub-tenant’s name may not appear on the lease. However, in a sub-tenancy, the head tenant takes on the full legal responsibility of a landlord.
While the rules vary slightly from state to state, most tenants are legally entitled to sublet, with the only exemption being where the landlord is a registered community housing organisation.
This doesn’t mean, however, that tenants can move just anyone into their unit, apartment or townhouse, with tenants only able to sublet with the written consent of their landlord.
While typically the tenancy acts of each state detail some additional rules relating to sub-tenancy, the one area that most agree on is the fact that for as long as the sub-tenancy or assignment lasts, the head tenant is responsible and liable to the landlord for the rent and the condition of the premises.
This means, the sub-tenant is responsible only to the head tenant and a sub-tenancy agreement automatically terminates on the termination of the main tenancy agreement.
If a sub-tenant damages the property the landlord will have an action against the head tenant or assignor, who can then take action against the sub-tenant for rent owing or for the damage to the premises for which the landlord has a claim.
But while most tenants try their best to adhere to the rules, those that choose to risk illegal subletting may face other challenges they hadn’t anticipated putting future tenancies at risk.
Whether it’s unruly guests, out of control parties or groups with over excited children, it’s not unusual for sublet properties to face the prospect of broken appliances, holes in walls, or other unexpected stains and marks.
Likewise, security can also be at risk when keys are copied and given to short-term tenants. Not only does this increase the risk of unknown people having unvetted access to building amenities which can create fear and concern for residents, it can potentially violate public health as well as the safety of other residents.
Not to mention the fact that increased noise and commotion, extra waste, extra demand for car parking, and misuse of common spaces can all add stress and uncertainty to residents.
But it’s not just your fellow residents you risk upsetting by choosing to illegally sublet with the very real chance your landlord could land in hot water as a result of you violating local by-laws, with some councils having rules banning short term accommodation arrangements.
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