Sub-letting and Residential Tenancies (WA)

In Western Australia, it is common for the tenant in a residential property to transfer or sub-let the property to another person. This may be because they want to share the property with someone else, because they want to vacate the property and hand the lease over to another person, or for some other reason. Understanding the legal framework surrounding sub-letting and tenancy transfers is crucial for both landlords and tenants to avoid disputes and ensure compliance with Western Australian law. This page deals with sub-letting and residential tenancies in Western Australia.

Legislation

The Residential Tenancies Act 1987 governs residential tenancies and sub-tenancies in Western Australia. This comprehensive legislation establishes the rights and obligations of all parties involved in residential rental arrangements, including head tenants, sub-tenants, and lessors.

Under section 49 of the Residential Tenancies Act 1987, a residential tenancy in Western Australia may stipulate that the tenant:

• May assign their interest under the lease or sub-let the premises;
• May not assign their interest under the lease or sub-let the premises;
• May assign their interest under the lease or sub-let the premises only with the lessor's written consent.

Where a lease provides that the lessor's consent is required to transfer or sub-let the premises, the lessor must not unreasonably withhold their consent. This provision ensures a fair balance between protecting the lessor's interests and allowing tenants reasonable flexibility in their tenancy arrangements.

How do transfers of tenancies work?

Complete Assignment of Lease

When a tenant transfers their interests in a rental property under a lease, they hand over all their rights and responsibilities under the lease to another party. This means that the new tenant then takes over the tenancy and is responsible to the lessor for the property. The original tenant is no longer a party to the lease and is released from their obligations.

Legal Requirements for Transfers

For a valid transfer to occur, the assignment must be properly documented and executed according to the terms of the original lease agreement. The lessor should be notified of the transfer, and any required consents must be obtained before the assignment takes effect. The new tenant becomes liable for all future rent payments and compliance with lease terms from the date of transfer.

How does sub-letting work?

Head Tenant Responsibilities

When a tenant (the head tenant) sub-lets a property to another person (the sub-tenant), the head tenant remains responsible to the lessor for the property. The head tenant has all the same responsibilities to the sub-tenant as the lessor has to the head tenant. This creates a dual relationship where the head tenant acts as both tenant and landlord.

Sub-tenant Obligations

The sub-tenant is responsible to the head tenant for looking after the property, paying rent, and anything else that has been agreed between the parties. If the head tenant collects a bond from the sub-tenant, they must lodge this with the Bond Administrator. The head tenant is responsible for conducting inspections and returning bond money.

Written Agreements and Documentation

Importance of Proper Documentation

Both tenancy transfers and sub-letting arrangements should be properly documented in writing to avoid future disputes. For sub-letting arrangements, a separate residential tenancy agreement should be created between the head tenant and sub-tenant, clearly outlining rent amounts, payment schedules, and property maintenance responsibilities.

Record Keeping Requirements

Head tenants must maintain accurate records of all transactions with sub-tenants, including rent receipts, bond payments, and any correspondence regarding property maintenance or repairs. These records may be required if disputes arise or if the lessor requests information about the sub-tenancy arrangement.

Rights and Obligations of All Parties

Lessor Rights and Responsibilities

Lessors retain the right to reasonable access to their property for inspections and repairs, even when the property is sub-let. They must continue to maintain the property in good repair and comply with their obligations under the original lease agreement. However, lessors cannot unreasonably refuse consent for sub-letting when such consent is required under the lease terms.

Tenant Protection Measures

Both head tenants and sub-tenants are protected by the Residential Tenancies Act 1987, which provides mechanisms for dispute resolution and ensures fair treatment in residential tenancy matters. Sub-tenants have similar rights to those of head tenants, including the right to quiet enjoyment of the property and protection from unlawful eviction.

Applying to the court

When Court Applications Are Necessary

If a tenant believes that a lessor has unreasonably withheld their consent to transfer or sub-let a residential tenancy, they may apply for an order from the Magistrates Court allowing them to transfer or sub-let the property without the consent of the lessor.

Application Process

This application must be made online, and all supporting documentation must be filed using the eCourtsPortal. The application must clearly outline the issue and the orders being sought. The application will be heard by the Magistrates Court nearest to the property.

Applicants should provide evidence demonstrating that the lessor's refusal was unreasonable, such as correspondence showing arbitrary rejection or failure to respond to reasonable requests for consent.

Frequently Asked Questions

Can a lessor charge fees for consenting to sub-letting?

Under the Residential Tenancies Act 1987, lessors cannot charge unreasonable fees for providing consent to sub-let or transfer a tenancy. Any administrative costs must be reasonable and directly related to processing the consent request. Excessive fees may be considered unreasonable withholding of consent.

What happens if a sub-tenant damages the property?

The head tenant remains liable to the lessor for any damage caused by sub-tenants. However, the head tenant can seek compensation from the sub-tenant for damages through the sub-tenancy agreement and bond arrangements. It's important for head tenants to conduct thorough entry and exit inspections with sub-tenants.

Can a head tenant terminate a sub-tenancy early?

Head tenants can terminate sub-tenancies in accordance with the terms of the sub-tenancy agreement and the provisions of the Residential Tenancies Act 1987. The same notice periods and termination procedures that apply to standard residential tenancies generally apply to sub-tenancies, ensuring sub-tenants receive appropriate protection.

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