MAIN IMAGE: Adrian Goslett, Regional Director and CEO of RE/MAX of Southern Africa
Staff Writer
Subletting can sometimes be a tempting solution when life changes unexpectedly during the timespan of your lease agreement. While this can be a useful solution when undertaken correctly, subletting can also be incredibly risky, especially when correct procedures are not followed.
According to Adrian Goslett, Regional Director and CEO of RE/MAX of Southern Africa, subletting might offer a solution to those who do not want to lose their lease because, for example, they might have a short-term overseas job opportunity or perhaps they find themselves unable to keep up with rental payments.
“However, not all lease agreements will allow a tenant to sublet the property. Tenants need to check their rental agreement before considering this as an option,” he cautions.
According to Snyman’s Attorneys, under South African common law, a tenant has the right to sublet a property. Therefore, unless the primary lease agreement provides otherwise, the tenant is entitled to sublet the property without the consent of the landlord. It is worth noting though, that even if a clause preventing the tenant from subletting a property is included in the original lease agreement, this does not prevent the tenant from allowing another person to occupy the premises without payment.
A sublease is a contract whereby the tenant rents out the property or part thereof to a third party. There are two lease agreements that exist if the tenant sublets the property: one between the landlord and the tenant and another between the tenant and the third-party lessee. There is also no contractual relationship between the primary landlord and the third party.
Snyman’s says when a tenant wants to sublet, he or she should consider whether this is allowed under the lease agreement or whether it is specifically prohibited. While a landlord cannot unreasonably withhold consent, a tenant may not sublet without this consent.
Goslett adds that subletting can be a risky undertaking because all responsibility ultimately remains with the primary tenant.
“If the person you are subletting to skips a payment or damages the property, you will still be held liable for it. That is why it is so important to screen potential sub-letters thoroughly and to set up a comprehensive subletting agreement before going ahead with this arrangement,” he recommends.
There are several subletting arrangements, including:
- A room-by-room agreement where the primary tenant sublets one or two rooms of the home while he/she continues to live on the property. Essentially, the primary tenant is sharing the space with a sub-letter, usually to help him/her afford the rental payments.
- A short-term agreement where the whole home is sublet for a limited period only with the understanding that the primary tenant will return to the property to finish the original lease term. This is usually done when the tenant needs to be away from home for a period but plans to return thereafter.
- A long-term agreement where the primary tenant essentially moves out of the property and allows a sub-letter to live in the home for the remaining period of the original rental agreement. Once the original lease expires, the primary tenant needs to either renew or the sub-letter will need to vacate the premises.
Although subletting can be useful in certain instances, it can also be challenging to manage and could pose risks to both the landlord as well as the primary tenant – which is why many lease agreements do not allow subletting.
