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. 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.
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.
How do transfers of tenancies work?
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.
How does sub-letting work?
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. 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.
Applying to the court
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.
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.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.