If a person is sharing part of a rental property with another person, without a rental agreement with the rental provider, they may be subletting, but not in all circumstances. If they are not subletting, they may not have the renter protections of the Residential Tenancies Act 1997.
Legally speaking, to be a renter who is subletting you must have ‘exclusive possession’ of all or part of the rented property.
Examples of ‘exclusive possession’ include:
- Renting a room in a rental property for your exclusive use
- Renting a separate part of a rental property, such as an outside studio, when you are the only person who accesses and uses that space
If you have ‘exclusive possession’ of a property, or part of it, that you are renting from another renter, who is the ‘head-renter’, rather than from the rental provider, you are a renter under the law. You have all the rights, responsibilities and protections of the Residential Tenancies Act 1997.
Other circumstances that may indicate a subletting arrangement include:
- One renter signed a written rental agreement with the rental provider and the second renter did not
- One renter moved in first, and registered the bond in their name, while the second renter paid their share of the bond to the first renter
- One renter collects the rent from the second renter and pays it to the rental provider
- One renter is responsible for all dealings with the rental provider, such as reporting repairs or giving notices
However, none of these circumstances alone will prove that there is a subletting arrangement, as the legal situation depends on the facts in each individual case.
If you are subletting, disputes between you and the head-renter that cannot be resolved can be decided by VCAT under its Residential Tenancies List.
Consent to sublet
A renter must not sublet all or part of the rented premises without the rental provider’s written consent. Without that consent, the sub-lease is not valid.
However, the rental provider must not unreasonably refuse consent. A renter can apply to VCAT for an order that the premises can be sublet if they believe that the rental provider is being unreasonable in refusing consent. For more information see our page Lease transfers and subletting.