There is some confusion about the differences between subletting and assigning. Both describe passing on a tenancy to another party but there are some significant differences.

Subletting

Subletting occurs when a tenant on-rents their rental property to someone else, for example for a short term holiday let, or any other situation where the tenant gives someone else exclusive use of the rental property for a period of time.

Consent is required

A tenant must have the landlord’s consent to sublet and only if their tenancy agreement does not include a clause that prohibits them from subletting. Even if the tenancy agreement does not prohibit subletting, the landlord’s written consent is still required.

Consent may not be unreasonably withheld

A landlord may not unreasonably withhold consent to sublet, or attach unreasonable conditions to the consent.

Subletting without consent

A tenant who sublets without the landlord’s written consent may be liable for a fine of up to $1,000.00 and may also be liable to pay compensation to the landlord.

Where the tenant is in breach of the tenancy agreement by subletting, the landlord may terminate the tenancy at which point the sub-tenancy will also end.

Responsibilities in a sublet

In a sublet, the tenancy agreement remains with the tenant who is subletting the property and that tenant must still meet all their obligations as a tenant under the tenancy agreement they have with the landlord, including ensuring that rent is paid and the house looked after.

At the same time, the tenant becomes the landlord to the tenant who is subletting. The tenant who becomes the landlord is referred to as a sub-landlord and the tenant to whom the property is sublet is referred to as the sub-tenant.

The tenant, as the sub-landlord, must meet all the obligations of a landlord and the sub-tenant must meet all the obligations of a tenant under the Residential Tenancies Act 1986 (RTA) except where the subletting arrangement is excluded under the Act such as for short term or holiday rental.

Assigning

Assigning a tenancy or assignment describes the transfer of all rights a tenant has under the tenancy agreement to another person. The new tenant therefore takes over all the original tenant’s responsibilities under the tenancy agreement. It typically occurs where a person finds a replacement tenant for their tenancy.

All requests for assignment must be considered

Since the amendments to the RTA came into effect on 11 February 2021, landlords must consider all requests from tenants to assign the tenancy and may not decline a request unreasonably. Note that this ruling does not apply to tenancies granted before 11 February 2021 if the tenancy agreement prohibits assignment.

Although a landlord may not decline an assignment unreasonably, they may include reasonable conditions for the assignment.

Procedure for assignment

When an assignment occurs, it should be recorded in writing and signed by the landlord and all the tenants including departing, continuing and new tenants.

Once signed and approved and from the date that the new tenant takes over, the original tenant is no longer responsible for the tenancy but they remain liable for anything done or money owed before that date.