Assignment and Subletting in Tenancies
An assignment of tenancy occurs when a tenant transfers all their rights and responsibilities under a tenancy agreement to another person (the assignee). The original tenant then ceases to be a tenant, and the assignee takes their place. Subletting occurs when a tenant rents out part or all of the property to another person (the subtenant) while remaining the primary tenant themselves. In both scenarios, the original tenancy agreement remains in effect.
Requirement for Landlord's Consent
A tenant must not assign, sublet, or otherwise part with possession of the rented premises without first obtaining the landlord's prior written consent [Source: Residential Tenancies Act 1986, s 42A(1)]. This requirement applies unless the tenancy agreement specifically states otherwise.
Landlord's Obligation Not to Unreasonably Withhold Consent
If the tenancy agreement provides that the tenant may assign, sublet, or otherwise part with possession of the premises with the consent of the landlord, then the landlord must not unreasonably withhold that consent [Source: Residential Tenancies Act 1986, s 42A(2)(b)].
The Residential Tenancies Act 1986 does not explicitly define what constitutes "unreasonable withholding" of consent. This determination is made by the Tenancy Tribunal on a case-by-case basis, considering all relevant circumstances of the specific situation [Source: Residential Tenancies Act 1986, s 42A(5)].
Landlord's Rights Regarding Consent
Landlords have certain rights when considering a request for assignment or subletting:
- Request for Information: A landlord may request reasonable information about the proposed assignee or subtenant to assess their suitability [Source: Residential Tenancies Act 1986, s 42A(3) implies this by allowing reasonable expenses].
- Reasonable Expenses: A landlord who gives consent may not require any payment or other consideration in return for that consent, other than the landlord's reasonable expenses in relation to the assignment or subletting [Source: Residential Tenancies Act 1986, s 42A(3)]. These expenses might include costs for credit checks, administrative fees, or drawing up new documents.
Consequences of Non-Response or Unauthorised Actions
If a landlord does not respond to a tenant's request for consent to assign or sublet within a reasonable time, the landlord is considered to have withheld consent [Source: Residential Tenancies Act 1986, s 42A(4)].
Assigning, subletting, or otherwise parting with possession of the premises without the required landlord's consent constitutes a breach of the tenancy agreement. This breach may lead to the landlord applying to the Tenancy Tribunal for remedies, including an order to terminate the tenancy [Source: Residential Tenancies Act 1986, s 56(1)(d)].
Recourse for Tenants
If a tenant believes that their landlord has unreasonably withheld consent for an assignment or subletting, the tenant may apply to the Tenancy Tribunal for a determination. The Tribunal has the authority to make an order deciding whether the landlord has indeed unreasonably withheld consent [Source: Residential Tenancies Act 1986, s 42A(5)].
When to Seek Independent Legal Advice
Determining whether a landlord has unreasonably withheld consent often involves complex factual assessments. Individuals seeking to understand their specific rights and obligations regarding tenancy assignments or subletting are encouraged to seek independent legal advice. Information can be obtained from official government agencies like Tenancy Services, or from Community Law Centres for free advice at Community Law Centres.