Subleasing a Place as The Main Tenant

dimmak84 on 25/11/2017 - 14:10
Last edited 25/11/2017 - 16:18 by 1 other user

Hey guys,

I secured myself an apartment in Melbourne CBD arae and I told my agent that I want to sublet after paying for the bond and 1st month rent. Agent refuses but I told her that under my lease agreement, "A landlord must give permission to sub-let, unless there is a good reason to refuse.” And “If a head tenant believes a landlord is refusing to allow them to sub-let without a good reason, they may apply to VCAT for a ruling.”

Now she is telling me that I should have asked for subleasing beforehand as I would not have been approved but I still believe that it is my right to ask for subleasing. I don't want to do anything dodgy here and simply want to sublease the other room to pay off the expenses. Any advice here guys or people in similar situations? Thanks.

Home & Garden

Comments

  • JimmyF on 25/11/2017 - 14:44
    +7

    You asked, they said no. Your next action is VCAT, so off you go.

  • Cheap Charlie on 25/11/2017 - 14:53
    +4

    Seems pretty black and white.
    How long is your current lease?
    The Agent/Landlord may elect to request vacant possession at the end of the lease.

    When I think of subletting, I think of the party whom has the lease vacating the property and on leasing to someone else. The Agent may not fully understand your intentions.
    The Agent/Landlord may have apprehensions as they are not approving the person whom you are subletting to.
    Investors want to protect their asset, it’s only natural for them to be concerned.

    Perhaps you can meet with the Agent and explain what you are trying to achieve.
    As a compromise, they may add an additional tenant to the existing lease?

  • wordplay on 25/11/2017 - 14:58

    Typical steal estate agent tactic, you have signed the lease that allows it so go to the VCAT and get that clause enforced. no doubt they will not extend your lease at the end though. make me sick that you have to waste your time now before being able to do what you are legally entitled to.
    Good luck.

    • Cheap Charlie on 25/11/2017 - 15:03
      -1

      make me sick that you have to waste your time now before being able to do what you are legally entitled to

      If you were the Landlord you may think otherwise.
      To me, it sounds like a misunderstanding between the Agent and the Tenant as to what the Tenant is trying to achieve.
      Further communication is required to resolve the issue.

      • dimmak84 on 25/11/2017 - 15:08
        +1

        Except I did put in writing later o the, explaining that I simply wish to sublease the other room to either a couple or one person. The agent replied by saying it is not allowed.

        • Cheap Charlie on 25/11/2017 - 15:11
          -1

          The issue may be they want a say in whom the additional tenants are?

          I am not familiar with VIC Lease agreements, does the lease specify how many people are able to reside at the property?

        • dimmak84 on 25/11/2017 - 15:14

          @Cheap Charlie:

          No. And the lease even includes the clause. A landlord may not unreasonably withhold permission to sublease

        • Grent on 26/11/2017 - 08:07

          Generally a lease will stipulate the max number of tenants or the specific tenants allowed to be there.

          You can’t just have more people live there without permission.

          Subletting, I thought, was a whole different concept where you move out and lease the property to someone else, possibly even for more money.

          One reason they would possibly be reasonably justified to decline this would be an increase in the number of tenants. (My opinion only)

  • robbyjones on 25/11/2017 - 15:27
    +4

    Looks like you might be hosting some long terms guests at your place.

  • imcjb on 25/11/2017 - 15:42
    +1

    Just be careful that you realise what obligations you will have as a landlord if you do lease out the room, ie, you will be both a tenant and a landlord.

  • Davo1111 on 25/11/2017 - 16:13

    Agent refuses

    Ask for that in writing.

    • dimmak84 on 25/11/2017 - 16:19

      I have that in writing as an email. Is that enough to send to vcat? The fact that I can sublease is within my rights ya?

  • Baysew on 25/11/2017 - 16:20
    +7

    If you do get some people in, don't hesitate to lend them some money.

  • ceeto on 26/11/2017 - 10:44
    +1

    Does the email you received come from the agent or the landlord? Many agents will initially just say no without checking with the landlord. Also, does it give you a reason for their refusal or just a "No".

    I would suggest you ask the agent whether they actually asked for consent or whether they made the decision themselves without consulting the landlord. Regardless of that, I would ask them to define the reasons for the refusal in writing before heading to VCAT, as the reasons they give will be what I believe VCAT will ponder on. If you get the reason in writing it will at least give you something to work on other than "No!" and may even cause the landlord to reconsider.

    The only challenge I can see is that from your description ("I told my agent that I want to sublet after paying for the bond and 1st month rent") I get the feeling they could possibly claim you always intended to sublet and purposely withheld that information until you had signed the lease (a matter of timing I suppose). Not sure how VCAT would view that, but they may side with the landlord if that is actually the case. Also not sure whether the agent may be saying no without asking the landlord, as if the landlord had a set against sub-letting the agent should have explicitly asked you before signing and so has failed in their duty to the landlord.

    Remember also that when you sub-let you become a landlord with all that entails (eg if you accept a bond from your tenant you must deposit it with the appropriate authority; the sub-tenant has to complain of any issues to you and you may then need to interact with the agent but you are your sub-tenants landlord)

    Don't proceed without getting written agreement from the landlord or VCAT - in Victoria my understanding is that gives the landlord permission to evict you.

    All the above is from my own experience (but in NSW) or personal understanding and does not constitute advice :)

    Good luck with it.

  • HeWhoKnows on 26/11/2017 - 11:30

    The agent is correct. You did not disclose that you intend to sub-let when you applied. Normally you would ask that such permission is mentioned in the lease. Having said that there is nothing to prevent you from sub-letting. You remain the person solely responsible for paying the rent in full and on time and responsible for any damages and cleaning at the end of the lease. To do the right thing notify the agent of the names and contact numbers of the sub-letting persons. However the agent can only contact YOU in respect of any tenancy matters including request to inspect or gain access. And visa versa

    • dimmak84 on 26/11/2017 - 13:18

      So in this case say I should hav done the right thing in mentioning beforehand, but it was a mistake. The agent can't use this against me as it doesn't state that I HAVE to tell them at the start in order to sublease correct? Cheers

    • Odin on 26/11/2017 - 13:25

      "You did not disclose that you intend to sub-let when you applied."

      It doesn't matter. There is nothing stopping a tenant from subletting an extra room.

  • ozbjunkie on 26/11/2017 - 20:10

    If it's a 2 bedroom place, and you want to rent the other room, just do it.

    Better to beg forgiveness than ask permission given you're not moving out or turning the place into a boarding hostel.

    • ceeto on 26/11/2017 - 21:21
      +1

      As I mentioned in my earlier comment above, I am not sure that "just do it" is good advice.

      The Tenants Victoria website comments that "If you assign or sub-let without consent, the landlord can give you a 14-day Notice to Vacate and apply to the Tribunal to have you evicted." Just after the comment that a landlord has to allow sub-letting unless they have a good reason https://www.tuv.org.au/advice/assignment-and-subletting/

      From the comments on the agent at the start it sounds as if they may not respond to begging for forgiveness :)

      Find out whether they actually asked the landlord, and ask for the reasons for refusal in writing, then go from there.

      Good luck

      • ozbjunkie on 27/11/2017 - 00:44

        How about just "letting her stay there".

        It's not a sublet unless you demonstrably collect rent, right?

  • Candour on 26/11/2017 - 21:39

    having got the lease there is nothing preventing you from asking to add a tenant as your circumstances change. they may refuse. then you have to follow the consumer affairs process. mediation a few times before the tribunal [in NSW]. I would ring consumer affairs in your state and ask them how you can assert your request properly and waht remedies you have. ultimately if the landlord does not let you, he may ahve grounds to hold you in breach of contract [see your agreement]. and ask you to leave once the lease is over.

    It is hard to find a rental which you can afford. try and find a flatmate to share with in future and let them know in advance if you intend to sublet.

    talk to the tenancy union and consumer affairs about how best to progress this.

    there is an open ended risk of subletting which you create by taking in strangers. the landlord and agent may have valid reservations against letting to unknown people who have not been vetted by the same process you have gone through to get the lease.

  • HighAndDry on 27/11/2017 - 11:54

    I need to stop browsing these kinds of posts. I don't have enough negs to neg all the wrong advice in these threads.

    1. Subleasing means that you CAN lease to someone else - it doesn't mean your landlord can't vet them (same requirements as they applied to you).

    2. Subleasing does NOT mean you can add an additional tenant - if the landlord approved your lease based on one occupant, having two occupants changes the lease significantly (up to double the outgoings, for example).

    TL;DR: You can sublease in the sense you can replace yourself with another tenant (meeting same requirements as yourself), but your landlord is well within their rights to disallow you to ADD an additional tenant.

  • dimmak84 on 27/11/2017 - 18:33

    So after I tell them that I will bring this matter to VCAT, they still insist that my request to sublease has been denied. Looks like it's off to the VCAT or is it possible at this point to dissolve the contract which might be better for all parties?

    • samfisher5986 on 30/11/2017 - 14:38

      What on earth are you doing this for? I honestly can't understand your logic at all.

      I can guarantee that if VCAT give you what you want, you will be evicted as soon as they legally can, probably at your next lease renewal.

      If you lose at VCAT, expect for them to monitor you like a hawk to check if you aren't subleasing anyway.

      And then you might get evicted for losing anyway because you were a pain in the ass.

      If you are in a semi popular area they have no reason to want to keep you in their property.

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