Is Subletting Legal in Queensland
Recent findings from the New Zealand Tenancy Court have highlighted the relationship between subletting laws and platforms like Airbnb. In this three-part series, partners Ivan Orola and attorney Chris Cullen discuss the concept of subletting and the legal and practical considerations relevant to landlords, tenants and subtenants when entering into subleases. The use of Airbnb and similar platforms has been widely regarded as a form of subletting in Australia. The Supreme Court of Victoria ruled in Swan v Uecker [2016] VSC 313 that an Airbnb contract included the features of exclusive ownership, so it was considered a sublease rather than a license of the property. Important Disclaimer: This article is provided for general information purposes only, and the author has no obligation to provide professional advice or services through this article. Readers should ensure the accuracy, relevance and applicability of the above content and should not act in relation to any particular matter or generally without first obtaining their own independent professional legal advice. If a tenant has sublet all or part of a property, either through a «traditional» subletting or through more modern platforms such as Airbnb, the landlord may be entitled to compensation or profits made by the tenant as a result of their breach, provided there is evidence. Where subletting is permitted and the owner`s consent to subletting is required, the Property Law Act (Qld) (PLA) 1974 provides that the owner`s consent cannot be unreasonably withheld. If the landlord`s consent is found to have been unjustifiably refused, the tenant can either sublet (and defend any attempt by the landlord to renounce the lease for lack of consent) or ask the court to declare that the refusal was unreasonable. However, both of these measures should only be taken after obtaining appropriate legal advice and can in any case be costly.
(a) the landlord agrees in writing to the transfer or sublease; or (b) the transfer or sublease is effected by court order. Under a residential lease, the tenant has a number of legal rights. These rights generally require the landlord to provide the tenant with the leased premises in good condition or to refrain from any action that could affect the tenant`s ability to use the leased premises. If the landlord violates one of their obligations by violating the tenant`s rights, they may be required to pay damages to the tenant. There is a good but important legal nuance that needs to be considered when it comes to the duration of a sublease to ensure that it is not considered an assignment. In short, an assignment is a transfer of the entire rent while a sublease is the transfer of an interest less than the tenant`s interest (i.e. the term of the lease). In order to avoid assignment of the lease, the expiry date of the sublease must be at least one day before the expiry date of the main lease. If the duration of the sublease is equal to or greater than the duration of the main lease, it constitutes an assignment and is not considered a sublease. In this situation, the tenant loses all interest in the lease and the subtenant has a direct relationship with the landlord. «Subletting occurs when the tenant transfers some, but not all, of his legal interest under the lease to another person, such as a legal interest in a room or part of the apartment, but the original lease with the landlord remains in place, so that the first tenant has legal obligations, like paying the rent,» he says.
The first step from a legal perspective is to review the terms of the master lease to determine if it allows the tenant to sublet the premises (or part of it). While it is common for leases to allow tenants to sublet (usually subject to the landlord`s prior written consent), some leases expressly prohibit this. As with any legal agreement, there are some important factors that tenants should consider before entering into a sublease. The court concluded that Airbnb and similar platforms are different from a typical «renter» or «hotel guest» contract and are instead a form of subletting because they grant exclusive ownership of the property. By not obtaining the landlord`s consent before registering with Airbnb, the tenants clearly violated the lease and section 44 of New Zealand`s Residential Tenancies Act 1986. Subletting is an arrangement whereby a tenant rents out a room or room to someone who is not listed in the lease – and although this is legal in Australia, the landlord must give permission. It only touches the surface in terms of legal and practical considerations when subtenderness. Tenants should carefully consider the above points as well as appropriate legal advice to ensure that the sublease achieves its intended purpose. These legal guides provide a brief summary and introduction to the laws and regulations that affect shared housing.
They do not cover all cases in all jurisdictions and may not apply to your specific shared apartment. It is important that you use this information for information purposes only and seek independent legal advice or consult relevant laws. We disclaim any liability that may arise from the use of this information. Legal right to use the leased premises Throughout the tenancy, the landlord must take all reasonable steps to ensure that the tenant is legally entitled to use the leased premises as a residence. Legal barriers to using a leased building as a residence often include environmental planning restrictions, health and safety regulations, or government orders. This means that before renting a property, the landlord must inquire whether it can be used as a residence. In shared apartments where the landlord has multiple tenants under separate agreements in a property, it is very important for the landlord to ensure that the tenants do not interfere with each other. The best way to avoid problems is to introduce tenants to each other and discuss how the shared apartment will work in practice. The main lease prohibits subletting – what should I do? We will review your request based on legal requirements. We will seek the views of other stakeholders (e.g. national, regional and local authorities) and inspect the land if necessary. The owners purchased a property under the Hilton Park Community Titles Scheme («CMS») in October 2016.
The CMS was also registered as part of a «hosting module» (i.e. primarily for residential purposes and not for the exercise of commercial enterprises). The owners then put their property on «Stayz.com.au» and hired a property manager to rent the vacation. Once an agreement is reached, a subtenant has similar obligations to the primary tenant, D`Cruz said. For example, an obligation to pay rent and keep the place clean and tidy. Once a valid sublease agreement is concluded on foot, the subtenant is granted the right of exclusive possession of all or part of the property – i.e. the general right to exclude other persons (including the tenant) in relation to the sublet space. If you have any questions about community titles, subletting and lease agreements, please contact Paul O`Dea on our Real Estate and Projects team. REIQ members who have further questions about subletting can contact the Property Management Support Service by email at pmsupport@reiq.com.au or by calling 1300MYREIQ (697 347). Not a member yet? Register today.
There is no set list of things that interfere with silent enjoyment. However, there are a number of common examples where the landlord violates the tenant`s rights: Given the ongoing restructuring of the market and reduced rent relief and other government stimulus, there is no better time to reassess your lease. Whether or not the underlying motivation is related to the pandemic, in many cases there are benefits in terms of efficiency, cost or operation. Leases issued under the Land Act 1994 can only be sublet if the Secretary of State for Resources gives written permission or if you have appropriate blanket permission to sublet. If a sublease is approved, the registered owner of the lease remains responsible for all terms of the lease. The modification must not increase or decrease the sublet space; adding or removing any part of the sublease; or increase the duration of the sublease. Once the property is sublet, anyone living in the rental property must be approved by the manager or owner of the building as an eligible occupant, and the special conditions section of the lease may be amended. The RTA states that «any agreement between a prime tenant and a subtenant should be in writing, and it is recommended that bill-sharing agreements (e.g.