Just because a person is sharing part of a house or flat with another person, it does not necessarily mean that they have a subletting arrangement. There is often confusion about whether a tenant is a sub-tenant, a co-tenant or a licensee. Co-tenants are all parties to the one tenancy agreement or lease together, with equal rights and one landlord. On the other hand, circumstances that may indicate a subletting situation are:
- one tenant signed a written tenancy agreement with the landlord and the other did not
- one tenant moved in before the other and the later tenant paid bond to the first tenant
- one tenant collects the rent from the other and pays it to the landlord
- one tenant is responsible for all dealings with the landlord (eg repair requests, giving notices).
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. While it is not always clear when a subletting arrangement exists, the difference between a sub-lease and a co-tenancy can be important if a dispute arises between yourself and another tenant. Legally speaking, to be a tenant you must have ‘exclusive possession’ of all or part of the rented property. This means that if you move into an existing household, you may be regarded simply as a licensee, with no tenancy rights. If you share a house with the landlord, you are presumed to be a licensee.
If you rent a room and the door is lockable or you rent a discrete part of the rented property, you may be regarded as a tenant, which means that you do have tenancy rights.
Licensees can sometimes have their disputes heard under the Australian Consumer Law and Fair Trading Act 2012 (Vic) in the Civil Claims List at the Tribunal, but they do not have the same rights that tenants have under the Residential Tenancies Act 1997. A dispute between a head-tenant and a subtenant can be taken to the Victorian Civil and Administrative Tribunal, and the Residential Tenancies Act 1997 applies. However, the Tribunal cannot deal with disputes between co-tenants (see below.)
Getting advice about a co-tenancy
We don’t give advice on co-tenant disputes. But you can find some information for co-tenants on our Shared households page. Both parties to the dispute must agree to go to mediation. If you need legal advice you can contact the Federation of Community Legal Centres on 9652 1500 and they can refer you to a legal centre in your area. Community Legal Centres provide free legal advice to eligible clients (however not all legal centres are able to advise on tenancy matters).