There are different kinds of share houses, and sometimes, these come with different rules. Here, we explain the difference between share houses and sub-letting, and we also cover some of the laws that apply to university accommodation.
If you are thinking of moving into a share house, check out our guide to starting a tenancy. We also have guides on your rights in a tenancy, and leaving a tenancy.
Hopefully we have answered your question! But if not, you can contact us here for free legal advice if you are under 25.
Subletting is when a renter (head-tenant) rents part or all of the property to another person (sub-tenant). The original tenant (head-tenant) is still responsible for the lease with the landlord.
Subletting differs from a transfer, where a renter is transferred to an existing rental agreement, and from co-tenant/joint tenant, where all renters are on the rental agreement.
Here are some examples of the differences between sub-renting and co-tenants:
| Subletting Example:
Imagine Sarah rents an apartment on a one-year lease. After six months, she needs to go abroad for a three-month internship. Instead of breaking her lease, Sarah decides to sublet her apartment. She finds Tom, who agrees to live in the apartment and pay the rent for those three months. In this scenario, Tom pays the rent to Sarah, and Sarah continues to pay the landlord. Sarah is still responsible for the apartment and the lease agreement, and Tom does not deal directly with the landlord. |
Joint Tenant (co-tenant) Example:
Sarah and her friend Jane are looking for an apartment together. They find one they like and both sign the rental agreement with the landlord. This means both Sarah and Jane are equally responsible for paying the rent and maintaining the apartment according to the lease terms. Both of their names are on the lease, and they each have a direct relationship with the landlord. They are known as joint tenants.
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| In subletting, the original tenant (like Sarah) retains their responsibility under the lease and rents out the property to someone else (like Tom), who pays rent to the tenant, not directly to the landlord. | In a joint tenancy, all individuals (like Sarah and Jane) sign the lease with the landlord and share responsibilities directly. |
If you are renting part of the property (like a bedroom) from a tenant and your name is not on the main agreement with the landlord, you may be a sub-tenant. The tenant you are renting from is known as the head tenant.
The head tenant must get the landlord’s written permission to sub-let.
Head tenants and sub-tenants have different legal rights and responsibilities. In this arrangement, the head tenant takes on the responsibilities of the landlord for the sub-tenants.
To sublet a rental property, you must get the rental provider’s written consent, or an order from the Tribunal. Subletting without the rental provider’s consent can mean the sublet is invalid.
If you are the head tenant, you need to get the landlord’s written consent to sub-let the property. Once you have this consent, you assume the role of a landlord for your sub-tenant, which means you have certain duties and responsibilities. We recommend that you have a written agreement in place.
If you are the sub-tenant, you have similar rights and responsibilities to the head tenant regarding eviction, rent increases, and property maintenance to those of any other tenant.
If you are the head tenant, it’s a good idea to have a separate lease agreement with the sub-tenant. This should include details about the bond as per a normal tenancy agreement.
You can check out our bonds section for more information, or contact Consumer Business Services – Residential bond enquiries online or on 131 882. Alternatively, you can contact either the Legal Services Commission for general legal advice on 130 366 424 or Rent Right SA on their Tenancy Advisor line at 1800 060 462.
A sub-tenant can report any needed repairs to the head tenant, who is responsible for arranging repairs with the landlord.
You can read more about your rights if repairs are needed here –SA.GOV.AU – Repairs and maintenance in private rental properties or above at our ‘A guide to living in a rental’ section.
It is important to remember that the sub-tenant is only responsible to the head tenant. The head tenant is responsible to the landlord.
If disputes arise between a head tenant and a sub-tenant, it’s usually a good idea to try to resolve the dispute between yourselves. It is also a good idea to keep a written record of these conversations in case it escalates to Tribunal.
Disputes between sub-tenants and head tenants about tenancy agreements can generally be decided by the Tribunal, but the Tribunal cannot deal with disputes between joint tenants or where one party is resident interstate (these need to be dealt with through the Magistrates Court instead).
Mediation through the Community mediation Services or SYC | RentRight SA – Tenant Advice and Advocacy Service is an option for resolving disputes, but everyone involved must agree to participate.
If the head tenant wants to leave early, they need to follow the correct procedures as per the above information in ‘A guide to leaving a rental’ or as allowed by law.
The sub-tenant’s agreement only lasts if the head tenancy exists. It will automatically terminate on termination of the main tenancy agreement as the sub-tenant has no agreement with the original landlord.
The sub-tenant can speak to the landlord about taking over the lease if they want to stay on.
If the sub-tenant wants to leave early, they again can follow the procedures we explain in our ‘A guide to leaving a rental’ (the head tenant is treated like a landlord).
The head tenant will still have to meet their obligations with the landlord as per their own tenancy agreement.
Yes, you are still protected by the Residential Tenancies Act 1997 (SA) if you sub-let a property, but there are some conditions:
For more information about subletting, check out the Legal Services Commission South Australia’s website Subletting or assignment of tenancy and on Consumer Business Services website SA.GOV.AU – Forms and fact sheets for private rental tenancies.
Co-tenants usually divide the bond payments and lodge one bond with Consumer and Business Services, but this must be discussed and arranged by them.
On refund of bond money, if it was lodged in several names, the Tribunal may pay it out equally, or the co-tenants and landlord can reach another agreement.
An exception to this is where there is domestic violence involved. If this applies then Tribunal can make an order that the bond be paid to the landlord and any co-tenant found not to be responsible for the damage caused.
The Tribunal cannot deal with disputes between co-tenants (only issues between landlords and tenants)
If disputes arise between co-tenants, they should try and resolve this themselves, use mediation options, or some cases can be taken to the Magistrates Court.
To prevent disputes arising between co-tenants, you may wish to have:
If disputes do arise, you may wish to:
By setting clear expectations and maintaining communication, many co-tenants disputes can be prevented or resolved smoothly.
Co-tenants enter into a tenancy agreement together, so are jointly and severally liable. This means that the landlord can bring an action against any one of them listed for the full amount liable under the tenancy agreement, or all of them.
If one co-tenant wishes to leave the tenancy prior to the end of their lease, it is best to speak with the landlord to discuss possible options. If you are still on the rental agreement, you will continue to be responsible to fulfil the agreement terms and conditions. This would include being responsible for any rent or damage that occurs even after you leave.
Some possible options to discuss would be to see whether you can find a replacement co-tenant and the landlord and other co-tenant consents to this, or the remaining co-tenant taking over the rest of the lease period. Any changes should be reflected ideally a new tenancy agreement.
A landlord can only ask co-tenants to leave the property before the end of the lease agreement in certain circumstances.
You can read more about the landlord ending a tenancy agreement in our ‘A guide to leaving a rental’.
If you are experiencing family or domestic violence within a share house, you have certain rights and can also apply to the Tribunal. You might have a right to request to change the locks where an intervention order is in place, and the ability to terminate or replace the agreement if subject to domestic violence, or prevent the landlord terminating the tenancy for a breach caused by the person who is subjecting the tenant and their families to domestic abuse
CBS has a factsheet regarding protection for tenants in domestic abuse situations here Domestic-abuse-protections.pdf.
In general, university accommodation is not covered by the same laws that apply to rental properties.
If you are unsure of your rights in student accommodation, or if you think you have been treated unfairly, we recommend you speak with a lawyer. Many universities have student legal services that can help students for free.
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