Welcome 

Welcome to the latest edition of The Letterbox, NSW Fair Trading’s enewsletter about tenancy issues. This edition focuses on sub-letting.  

Sub-letting 

There are many reasons why a tenant might consider sharing their rented home. For some it’s about saving money and for others it’s about being social and feeling safe.

This edition of The Letterbox focuses on sub-letting and will outline the obligations for tenants and landlords and the steps that need to be followed when a tenant requests permission to sub-let a rented property.

A tenant might consider sub-letting their rented home by entering into a formal agreement with somebody to rent part or all of the premises. To do this, the tenant must first seek the landlord’s consent.

It is at the landlord’s discretion if they consent to the whole premises being sub-let. However, if the request is for only part of the property the landlord cannot unreasonably refuse.

For more information about giving consent to a tenant go to the Sub-letting requests from your tenant page on the Fair Trading website.

If a tenant wants to have an additional occupant, such as a family member, friend or stranger, live with them on an informal basis they do not need to get the landlord’s consent. However, they must not exceed the number of occupants allowed to live in the premises as stated in the tenancy agreement.

It is important that the head-tenant understands they are fully responsible for any sub-tenant or occupant. Should anything happen, such as damage to the property, it is the head-tenant's responsibility to rectify the issue.

If you’re interested in sub-letting your rented home or having additional occupants stay with you on an informal basis go to the Sharing a rented home page on the Fair Trading website for more information.

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Image of handing over keys in front of a house for Letterbox article

Answers to your questions about sub-letting

Q: Do I have to ask the landlord for permission to sub-let the spare room?

A: Yes, you must first have the landlord's written consent before you sub-let any part of the premises, such as a spare room. If you enter into a sub-let arrangement without the landlord’s consent, you are breaching the terms of your tenancy agreement. The landlord can apply to the Consumer, Trader and Tenancy Tribunal to order you to comply with the agreement.

If you want to have an additional occupant, such as a family member or friend, live with you on an informal basis you do not need the landlord's consent. The head-tenant is fully responsible for any co-tenant, just as they are for the sub-tenant. If the property is damaged it is the head-tenant's responsibility to rectify the issue.

More information is available on the Sharing a rented home page on the Fair Trading website.

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Q: As a landlord can I rightfully refuse to allow the tenant to sub-let the spare room?

A: As a landlord, you cannot unreasonably say no to a tenant’s request to sub-let a spare room.

However, there are some examples in law where it is reasonable to say no. These include:

  • if the total number of occupants permitted under the tenancy agreement or planning approval would be exceeded
  • if the person being proposed is listed on a tenancy database
  • if you reasonably believe that it would result in the premises being overcrowded.

It should be noted that this is not an exhaustive list, as there may be other situations where it is reasonable to decline a request to sub-let. Where you have declined a request, you should let the tenant know the reason(s). The tenant can apply to the Consumer, Trader and Tenancy Tribunal if they consider that you are being unreasonable.

Further information is available on the Sub-letting requests from your tenant page of the Fair Trading website.

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Q: Who is responsible to the landlord for the cost of damage caused to the property by sub-tenants during the tenancy?

A: The head-tenant continues to be responsible for damage caused by anyone they have allowed into the premises, including sub-tenants. If the sub-tenant causes damage, the head-tenant must ensure that it is fixed or be liable to the landlord for the cost of the repairs.

The landlord could make a claim from the tenant’s bond if damage is discovered at the end of the tenancy. Similarly, the sub-tenant is responsible to the head-tenant and could be required to reimburse them.

For more information go to the Making a bond claim page of the Fair Trading website.

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Q: What recourse does the landlord have if the head tenant has sub-let the premises without getting the landlord’s consent?

A: A tenant who enters into a sub-let arrangement without prior consent is breaching the terms of the tenancy agreement.

The landlord has a number of options for dealing with the breach. They may decide to approve the sub-let arrangement if they think it is reasonable to do so. However, in some cases this may not be appropriate, for example if overcrowding is an issue. The landlord can write to the tenant directing them to comply (ie. by giving a termination notice to the sub-tenant and ensuring they move out).

Landlords can go to the Giving a termination notice page on the Fair Trading website for more information.

If the breach remains unresolved, the landlord can apply to the Consumer, Trader and Tenancy Tribunal to order the tenant to comply or to terminate the tenancy.

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Q: What rights does a sub-tenant have when renting?

A: Sub-tenants have similar rights to the head-tenant. In a sub-let arrangement, the head-tenant effectively becomes the landlord to the sub-tenant and must sign a written tenancy agreement with them, using the standard Residential tenancy agreement form which sets out both parties’ rights and obligations.

The relationship between the landlord and the head-tenant may also impact on the sub-tenant. For example, if the head-tenant is given a termination notice, they in turn would need to take steps to terminate the sub-tenancy so that they can give back vacant possession of the premises to the landlord.

For more information, sub-tenants can refer to the Resolving renting problems page of the Fair Trading website.

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Q. How is the bond refunded if three people are on the tenancy and one is not available at the time of termination to sign the bond release form?

If the landlord is not making a claim from the bond, then it is not necessary for the tenants to sign the refund form. The landlord’s or agent’s signature is sufficient to release the full bond to the tenants. However, to ensure the full bond is refunded in a timely manner, it may be beneficial to get at least one tenant to sign the bond refund form and ensure the correct address and bank details are included.

If the landlord is making a claim, one tenant’s signature is sufficient to approve payment of any money owing to the landlord from the bond. There is no need for all three to sign.

If the form has not been signed by all the tenants, Fair Trading would usually issue their refund as a single cheque in all three names. The tenants would then need to go to one of their banks to negotiate the cheque. For a faster refund, the tenants can all sign the refund form authorising Fair Trading to pay the money into a specified bank account.

If one of the tenants is no longer available to sign the form or refund cheque, it may be necessary for the others to complete a statutory declaration. Tenants should contact Fair Trading on 13 32 20 for advice in this situation.

Tenants can find more information on the Getting your bond back page of the Fair Trading website.

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Have you watched our new tenancy videos?  

As part of our commitment to supporting local communities, we have released a new DVD resource kit titled Renting a home: A tenant’s guide to rights and responsibilities, in 17 languages including English.

The resource kit is designed to help non-English speaking tenants, especially humanitarian entrants and emerging language groups. It consists of 10 videos, which cover all the stages of a tenancy.

Fair Trading Commissioner Rod Stowe said people from diverse backgrounds often suffer because of a lack of understanding of their tenancy rights due to a language barrier.

The videos have been produced in Arabic, Assyrian, Burmese, Cantonese, Dari, Dinka, Farsi, Hazaragi, Indonesian, Korean, Kirundi, Mandarin, Nepalese, Swahili, Tamil and Vietnamese. They are also available in English.

You can watch these videos, plus other property related videos, on the Fair Trading YouTube channel.

You can order copies of the DVD resource kit by emailing publications@services.nsw.gov.au

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Window and balcony safety for children

Every year in Australia, approximately one child a week will fall from a window or a balcony. Children are injured and in some cases these injuries are fatal.

Make sure your home is child safe by moving furniture away from windows and balustrades on balconies, and fitting locks or guards to windows so that they cannot be opened more than 12.5 cm, except by an adult.

Don’t get fooled by fly screens. They’re designed to keep insects out – not hold kids in. They’re simply not strong enough.

If you live in a rented property make sure you get the landlord’s written consent before adding a fixture or making an alteration to your home. By law, a landlord cannot unreasonably refuse consent for a tenant to make minor changes, such as installing window safety devices or other security features. Kids don't fly

Landlords can find more information at the Alteration requests from your tenant page on the Fair Trading website. Tenants can go to the Safety and security page on the Fair Trading website for information about balcony and window safety.

Kids Health, the health promotion unit at the Children’s Hospital of Westmead, has fantastic resources available to help you prevent a child from falling. Go to the Kids don't fly page on the Kids Health website to download your copy.  

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In the next edition - falling behind with your rent!

The next edition of The Letterbox - due for release in May 2013 - will focus on the topic of falling behind with rent! What to do as a tenant if you're behind with rent and what steps should a landlord take? We invite you to email your questions to us at theletterbox@services.nsw.gov.au by Monday 8 April 2013.

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We want to make sure The Letterbox is relevant and interesting. Please send us your comments, suggestions or topics you wish covered to theletterbox@services.nsw.gov.au  

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