Once you’ve found a new housemate, you should decide whether you want your new housemate to be a co-tenant, sub-tenant or boarder/ lodger. See The Legal Situation for the advantages and disadvantages of each legal position.
Get a checklist on how to assess prospective housemates here.
Asking for the landlord’s consent
If you want to have your new housemate as your co-tenant or subtenant, you need to ask your landlord for their consent. Write to the landlord asking their consent to transfer or sub-let and provide evidence that the new housemate can pay the rent (e.g. copies of past payslips or bank account details) and has a good character (e.g. reference from a former landlord or an employer).
The landlord is refusing to give consent
The landlord may withhold consent if the number of proposed housemates is more than permitted by the tenancy agreement or planning laws, the proposed tenant or sub-tenant is listed on the tenancy database as a ‘bad tenant’, or the landlord reasonably believes that the transfer or subletting would result overcrowding.
The landlord must not unreasonably withhold consent when:
- you propose to transfer your tenancy and at least one of the tenants under the current Residential Tenancy Agreement will stay in the house as a tenant, or
- you are a tenant under the current Residential Tenancy Agreement and you want to sub-let to another person while you continue to stay in the house as a tenant.
If the landlord unreasonably withholds consent, you can apply to NCAT for an order allowing you to transfer or sub-let. The landlord must not charge for giving consent other than for the reasonable expenses of giving consent. Also see Tenants NSW Factsheets and Sample Letters for requesting consent and for when consent has been withheld (see Useful Resources).
A Transfer form can be found at the end of the previous section, Moving Out. An example of written consent from your landlord to sub-let can be found in The Legal Situation section of this guide. A sharehousing agreement that you can use to sub-let can be downloaded here: Sharehousing Agreement.
What if every tenant is moving out?
If every tenant who is named on the Residential Tenancy Agreement is moving out, the landlord can refuse to transfer or sub-let the place whether or not it is reasonable.
If you are still in a fixed term agreement you may have to end the agreement early because the landlord has refused to transfer or sub-let. There may be break fees or compensation payable to the landlord for ending your agreement early (see Moving Out). If the landlord applies to New South Wales Civil and Administrative Tribunal for compensation, you should argue that the Tribunal consider reducing the amount of compensation you have to pay as the landlord has failed to minimise the loss by refusing to allow the transfer or sub-let. See Tenants NSW Factsheets – Ending Tenancy Early (see Useful Resources).
Transferring the bond
If one of your housemates is moving out and the new housemate replaces him or her as co-tenant, you can change the names of the tenants registered for the bond by using a ‘Change of Shared Tenancy Arrangement’ form. It needs to be signed by both the outgoing and incoming tenant and the landlord, and returned to NSW Fair Trading. The form is available on the NSW Fair Trading website (see Useful Resources).
If the new housemate is moving in as a sub-tenant, the head tenant can’t charge more than four weeks rent for bond. If the sub-tenant pays a bond, the head tenant must give the sub-tenant a receipt and deposit the money with NSW Fair Trading Renting Services, within 10 working days.