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, which then removes you from the lease. It is sometimes called an ‘assignment’.

Subletting happens when the person whose name is on the lease (the ‘head renter’) transfers part of the lease to someone else, whose name does not go 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 share of the 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 public housing policy (rules). This is because public housing is intended to be allocated in a fair and equitable way, based on need and the public housing waiting list.

The law, which overrides policy, allows lease transfers in limited situations, such as adding a partner or household member to your lease with Homes Victoria’s approval. However, it is important to 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 their income is not declared or a ‘notice to vacate’. Subletting is almost always refused, to protect the integrity of the housing system.

Public housing is a house, unit or apartment you rent from Homes Victoria, which is part of the Victorian Government’s Department of Families, Fairness and Housing (DFFH). Find out more on our page about public housing.

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

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

However, because Homes Victoria must make sure it allocates public housing fairly and efficiently via the waiting list, you should seek advice before you look to remove yourself from the lease and have someone else replace you. Tenants Victoria and other organisations can help. See the information on this page about how you can get help.

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

Before you seek to transfer your lease, it is best to have already told Homes Victoria in writing about all members of your household, including any approved residents. This helps document a household member’s connection to the property and prevents allegations of unlawful subletting and rental rebate issues, (s your rent rebate is calculated using the income of who is living with you, regardless of whether their name is on the lease or not.

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; in other words, with the permission of Homes Victoria.

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 part of the household and have an established and potentially significant connection to the property.

To get permission, advise Homes Victoria in writing using the additional household member form from the Homes Victoria website.

The next step is to request consent from Homes Victoria for a lease transfer. You must request this consent and should do so in writing.

Note that:

• Only a current renter can request this consent, not the proposed new renter or other household members
• Homes Victoria 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 Homes Victoria 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 Homes Victoria is refusing consent due to unlawful discrimination because of your race, religion, sexual orientation, or another protected attribute, 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 Homes Victoria or VCAT allows you to transfer your lease, or part of your lease, to another person, this must be confirmed in writing, and any payment arrangements and eligibility for social security benefits should be considered 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.

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 there is not written consent, there is not a valid and enforceable sub-lease

Homes Victoria has a lawful policy that it will not allow public housing renters to sublet. This is intended to protect the waiting list, as well as to prevent complex situations between renters and financial exploitation of rental rebates and the public housing system.

If you are alleged to have sublet without Homes Victoria’s consent, this may result in a notice to vacate. See our page on notices to vacate and eviction.

It is best to advise Homes Victoria of anyone who is not listed on the lease but who is part of your household. That way, they are considered an authorised resident, not an unauthorised sublet. See the information on this page about how to notify Homes Victoria 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 an extended period, apply for a temporary absence on the HousingVic website.

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

To learn more about how Homes Victoria manages temporary absences in public housing, you can download the temporary absence operational guidelines from the tenancy management manual on the DFFH website.

Sometimes a dispute may arise between you and your co-renters, including when trying to organise a lease transfer. Also, at times Homes Victoria can rent homes from private homeowners to be used as public housing, which is effectively a subletting arrangement between you, Homes Victoria and the private homeowner. 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 Homes Victoria rents homes from private homeowners, to increase public housing supply. In these cases, the private owner is the landlord, Homes Victoria is the head renter and you (the public housing renter) are a sub-renter.

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

If the head lease between the owner and Homes Victoria ends, the public housing renter 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 Homes Victoria, seek legal 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
Ending or breaking your lease
Notices to vacate and eviction
Public housing