Assigning a tenancy
What should tenants do if their tenancy agreement contains a clause prohibiting assignment?
Assignment is when a tenant transfers their interests and responsibilities under a tenancy to a new tenant. The prohibition on assignment is of no effect, unless the tenant is in a social housing tenancy. The tenant needs to make a request to the landlord to assign their tenancy, and they must not withhold consent unreasonably. The tenant may like to talk to their landlord to let them know in advance that they can’t prohibit assignment requests.
What are reasonable grounds for a landlord to decline a tenant’s request to assign a tenancy?
The landlord should consider whether the request as a whole is unreasonable. Relevant factors could include:
whether there is a legitimate and pressing reason why the tenant wants to assign
the length that the fixed-term would continue if upheld
the impact that assignment will have on the landlord, both in terms of lost revenue and administrative burden, and considering also that they are able to mitigate this by recovering reasonable expenses under section 44 (5)
whether the landlord can show with reference to evidence that the new tenant that the current tenant has found is not a viable option and/or there is a reasonably foreseeable chance that they will not meet their obligations under the RTA.
Can a tenant press ahead with assignment if they contacted their landlord about assignment a month ago and never heard back?
A tenant can’t assign their tenancy without the landlord’s consent, even if the landlord isn’t responding within a reasonable amount of time or is withholding consent unreasonably. If the tenant assigns their tenancy without landlord consent, they may be liable for a fine up to $750. The tenant should remind the landlord that they have to respond to the request within a reasonable amount of time. If they don’t respond within a reasonable amount of time, the tenant can apply to the Tenancy Tribunal.
How long is a reasonable amount of time for a landlord to wait to respond to a tenant’s request to reassign a tenancy?
This depends on how long it will take to collect and consider information to determine whether a request is reasonable. Landlords shouldn’t delay collecting information unnecessarily and should follow up on delays. For example, if a landlord would normally carry out a criminal record check on prospective tenants then it is acceptable that they take the time to do this for a proposed assignee. Criminal record checks can take up to 20 working days, so a landlord who normally undertakes them could take the time that is needed to seek permission from the prospective tenant, apply for the check, wait for the result, and then consider and inform the tenant of their decision. 23 If the landlord just wanted to email the prospective tenant’s previous landlord for a reference check, then they should email or call the previous landlord as soon as is practical. If there are delays outside of the landlord’s control in collecting the information, they should consider whether information from an alternative source would suffice. The landlord won’t be liable if they have a reasonable excuse for failing to respond within a reasonable time.
What can a landlord do if a tenant assigned their tenancy without the landlord’s permission?
Landlords are not permitted to decline reasonable assignment requests. However, regardless of whether landlords decline reasonably or not, tenants commit an unlawful act if they assign a tenancy without landlord consent. Landlords can apply to the Tenancy Tribunal for exemplary damages of up to $750 where a tenant assigns a tenancy without landlord consent. Depending on the circumstances, the Tenancy Tribunal may decide that the assignment was of no effect.
What can landlords do if their tenant makes a reasonable assignment request but the landlord still doesn’t want to accept it?
The landlord can surrender the tenancy instead of accepting the request with the agreement of the current tenant. If the tenant wants to exit the property and has provided the landlord with a reasonable tenant for them to assign their tenancy to, the landlord either needs to accept this or agree with the tenant to end their tenancy. This will allow the landlord to go to the open market to advertise for a new tenant.