Lease transfers and subletting

A lease transfer happens when you, the renter, transfer your lease (officially called a rental agreement) or your part of it (if you are co-renting with other renters) to a new renter. You are then removed from the lease. It is sometimes called an ‘assignment’.

Subletting happens when the person named on the lease (the ‘head renter’) rents out all or part of the property to another person whose name is not on the lease (the ‘sub-renter’). The head renter pays rent to the landlord (also called the rental provider), and the sub-renter pays their rent to the head renter. The sub-renter must have ‘exclusive possession’ over some of the property, such as a separate room with an exclusive key.

Lease transfers, and especially subletting, are generally prohibited under community housing policies (rules). This is because community housing is intended to be fairly allocated, based on need and the community housing waiting list.

The law, which overrides community housing policies, allows lease transfers in limited situations, such as adding a partner or household member to your lease with your community housing provider’s approval or an order from the Victorian Civil and Administrative Tribunal (VCAT). However, you must follow the correct process. This is because allowing someone to live in your home who is not authorised to do so can result in a rent debt if you don’t declare their income, or a ‘notice to vacate’. Subletting by community housing renters is almost always refused because housing is allocated from the waiting list based on need.

Community housing is a house, unit or apartment you rent from a registered not-for-profit organisation. Find out more on our page about community housing. If your community housing is also a rooming house, please select the ‘rooming house’ rental type at the start of this page.

You can transfer your lease to someone else, including to someone who is already an approved resident of the property, if:

• Your community housing provider gives consent in writing, and
• The proposed new renter is someone who qualifies for community housing. To learn more, visit the eligibility page on the HousingVic website

If you want to transfer your lease to someone else, you should follow these steps.

Before you seek to transfer your lease, it is best to first tell your community housing provider in writing about all members of your household. This helps document a household member’s connection to the property and prevents allegations of unlawful subletting and rental rebate issues. Your rental rebate is calculated using not only your income but also the income of anyone who is living with you, regardless of whether their name is on the lease.

To avoid these complications when making a transfer request, it is important to understand the difference between an undeclared occupant, a visitor and an approved resident.

Before you request a lease transfer, it is often best to first add the proposed new renter to your household as an approved resident.

If you later consider moving out, or you are nearing the end of your life, you may then request that the lease be transferred to the resident, to make this person a renter. A resident typically has a greater chance of being approved as a new renter because they are already an approved member of the household and have an established connection to the property.

To get permission, inform your community housing provider in writing using the ‘additional household member’ form from your provider.

The next step is to request consent from your community housing provider for a lease transfer. You must request this consent in writing.

Note that:

• Only a current renter can request this consent, not the proposed new renter or other household members
• Your community housing provider does not have to give its consent to a lease transfer. It can refuse if it believes it would unfairly disadvantage other people on the waiting list or that the renter is not suitable

If you believe your community housing provider is being unreasonable in not consenting to a lease transfer, you can apply to VCAT for an order for the transfer to go ahead.

If you believe your community housing provider is refusing consent due to discrimination because of your race, religion, sexual orientation, or another protected personal attribute under the law, or that of the proposed new renter, you can raise this in an application to VCAT asking for the transfer to go ahead. You may also be able to seek compensation if discrimination is proven.

If your community housing provider or VCAT allows you to transfer your lease, or part of your lease, to another person, this must be confirmed in writing. You should also consider any payment arrangements and eligibility for social security benefits to ensure the rental rebate is calculated correctly.

If you are in a co-renting situation, the new renter should check over the original condition report and ensure they understand that they are now jointly responsible as a renter. If there is a disagreement about any issues, see the information on this page about disputes between co-renters.

Subletting occurs when the person named on the lease (the head renter) rents out all or part of the property to another person whose name is not on the lease (the sub-renter). In a subletting arrangement:

• The head renter stays responsible for the lease and pays rent to the landlord
• The head renter becomes the landlord of the sub-renter
• The sub-renter pays their rent to the head renter, not directly to the landlord
• The sub-renter must have exclusive possession of a specific part of the property, such as a private room. This usually involves a separate lock and key, but exclusive possession can still exist even without a lock if the arrangement clearly gives the sub-renter control over the space
• The sub-renter is not added to the lease, so the landlord deals directly with the head renter for issues like rent payments or damage to the property

For this arrangement to comply with the law, the landlord must have given their written consent. If they have not done this, there is not a valid and enforceable sub-lease.

Your community housing provider may have a policy that it will not allow renters to sublet. The provider may do this, for example, to protect the interests of people still on the community housing waiting list.

If you are alleged to have sublet without your community housing provider’s consent, this may result in a ‘notice to vacate’. See our page on notices to vacate and eviction.

It is best to advise your community housing provider in writing of anyone who is part of your household but not listed on the lease, so that all residents are formally approved. That way, they are considered an approved resident, not an unauthorised sublet. See the information on this page about how to notify your community housing provider about household changes.

It is important that renters keep control over the home, so as to not accidentally give residents or other people exclusive possession of the home in their absence, which may be interpreted as an unauthorised sublet.

If you need to be away for a long time, contact your community housing provider and ask for their policy and application process regarding a temporary absence, if they have one. Some community housing providers may allow a temporary absence with reduced rent. To learn more about temporary absence, see our page on ending or breaking your lease. Clearly inform your provider about:

• When you will be away
• When you plan to return
• Any person who may occupy the property in your absence

This ensures your tenancy remains compliant with the law and avoids misunderstandings between you and the community housing provider.

If you discover that you have been unknowingly subletting from a renter in a community housing property and you are eligible for community housing, you should seek advice immediately. Tenants Victoria and other organisations can help. See the information on this page about how to get help.

Sometimes a dispute may arise between you and your co-renters, including when trying to organise a lease transfer. Also, at times your community housing provider can rent homes from private homeowners or Homes Victoria to use as community housing. This is effectively a subletting arrangement between you, your community housing provider and the private homeowner or Homes Victoria. It is important to know what to do in these circumstances.

Tenants Victoria does not give advice on disputes between co-renters, as we cannot take sides between renters, with the exception of family and personal violence.

Similarly, VCAT will generally not deal with disputes between co-renters, except for matters involving family and personal violence.

If a dispute has come up between you and your co-renters, first try to resolve it between yourselves with good communication, if it is safe to do so. If that fails, you can try mediation through the Dispute Settlement Centre of Victoria. Mediation is a free, confidential and voluntary process, where people resolve their issues with the help of a mediator, who is a trained professional who doesn’t take sides. All renters in the dispute must agree to go to mediation. Call the Dispute Settlement Centre on 1300 372 888 or visit the Dispute Settlement Centre of Victoria website.

If you need legal advice, the Federation of Community Legal Centres (FCLC) can refer you to a legal centre in your area. Community legal centres provide free legal advice to eligible people, but not all of them are able to advise on rental matters or disputes between co-renters. Call the FCLC on 9652 1500 or visit the FCLC website.

Sometimes your community housing provider rents homes from private homeowners, or Homes Victoria. In these cases, the private owner, or Homes Victoria, is the landlord, your community housing provider is the head renter, and you (the community housing renter) are a sub-renter.

While the agreement between the private homeowner, or Homes Victoria, and your community housing provider is not fully covered by Victoria’s rental laws (the Residential Tenancies Act), it generally includes clear written consent allowing subletting to community housing renters in this circumstance. This arrangement usually does not affect things like repairs through your community housing provider, but it may affect how and when the lease can be ended.

If the head lease between the owner and your community housing provider ends, you may become the direct tenant of the private homeowner. If you, as a renter in this situation, receive a notice to vacate from either the private homeowner or your community housing provider, seek advice as soon as possible. Tenants Victoria and other organisations can help. See the information on this page about how to get help. See also our page on notices to vacate and eviction.

Bonds
Community housing
Ending or breaking your lease
Notices to vacate and eviction