Sub-letting and Residential Tenancies (SA)
In South Australia, it is common for a tenant in a residential property to seek to assign their interest in the property or sub-let the property. This may be because they want to end the tenancy before the expiry of a fixed-term lease, because they want to share the property with a housemate, or for some other reason. This page deals with assigning or sub-letting and residential tenancies in South Australia.
Residential tenancies in South Australia are governed by the Residential Tenancies Act 1995.
Under section 74 of the Residential Tenancies Act 1995, a tenant may assign their interest in a lease to another person, or sub-let the premises to another person by written agreement. However, they must not do so without the written consent of the landlord.
If the landlord is a public housing provider, they have absolute discretion as to whether or not to give consent. In any other case, a landlord must not unreasonably withhold consent.
Assigning a residential tenancy
When a tenant assigns their interest under a lease to another person, they allow the other person to take over the lease. This can occur if a tenant needs to leave before the end of a fixed term tenancy.
When a lease is assigned, the new tenant becomes responsible to the landlord for all of the old tenant’s obligations under the lease.
If a lease is assigned without the landlord’s permission, the original tenant will remain responsible for the property.
When a tenant sub-lets a residential property, they rent out part of the premises to another person. When this occurs, the tenant becomes the head tenant and the new tenant, the sub-tenant. The head tenant is responsible to the sub-tenant in the same way that a landlord is responsible to a tenant. The sub-tenant is responsible to the head tenant for looking after the property and fulfilling their obligations under the agreement.
Landlord cannot impose conditions
A landlord is not allowed to do any of the following in South Australia:
- Add conditions to a lease that limit the right to sublet or assign
- Ask for money to consider a request to assign or sub-let (other than their reasonable costs associated with the change)
- Increase the rent because the tenant has sub-let
Where landlord refuses consent
If a tenant asks for permission to assign a lease or sub-let premises and the landlord withholds consent, the tenant may apply to SA Civil and Administrative Tribunal (SACAT) for an order that the lease can be assigned or that the premises can be sub-let without the landlord’s consent. This application can be made online, by phone or in person. A filing fee of $81, or $60 concession, applies.
Once SACAT has received the application, the landlord will be notified that an application has been made against them and parties will be given a hearing date. Parties should attend the hearing and bring all relevant documentation. Legal representation is not allowed in tenancy matters except in exceptional circumstances with SACAT’s permission.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.