44 Assignment, subletting, or parting with possession by tenant

(1)

There may be included in a tenancy agreement a provision that expressly and unconditionally prohibits the tenant from assigning, subletting, or parting with possession of the premises during the term of the tenancy.

(2)

In the absence of such a provision, the tenant may at any time during the tenancy assign, sublet, or otherwise part with possession of the premises with the prior written consent of the landlord and in accordance with any conditions attached to that consent by the landlord.

(2A)

A tenant commits an unlawful act if he or she assigns, sublets, or otherwise parts with possession of the premises—

(a)

in contravention of a provision of the kind described in subsection (1); or

(b)

in any other case, without the prior written consent of the landlord.

(3)

The landlord shall not withhold that consent unreasonably, nor attach any unreasonable conditions to it.

(4)

Without limiting subsection (3), a landlord’s consent shall be taken to have been withheld unreasonably if the withholding of the consent is an unlawful act under section 12.

(5)

On giving consent to any assignment, subletting, or parting with possession of the premises by the tenant, the landlord shall be entitled to recover from the tenant any expenses reasonably incurred by the landlord in respect of the proposed transaction.

(6)

Where a tenant assigns his or her interest under the tenancy agreement to any other person with the consent of the landlord and in accordance with any conditions attached to that consent by the landlord, the tenant shall, on the date on which the assignment takes effect, cease to be responsible to the landlord for the obligations imposed on the tenant by the agreement and this Act, but without prejudice to any liability already incurred by the tenant to the landlord in respect of anything done or omitted to be done before that date.

Compare: 1952 No 51 s 110; 1965 No 16 s 3; 1975 No 36 s 9(1); Residential Tenancies Act 1978–1981 s 52 (SA)

Section 44 heading: amended, on 1 October 2010, by section 28(1) of the Residential Tenancies Amendment Act 2010 (2010 No 95).

Section 44(2): amended, on 1 October 2010, by section 28(2) of the Residential Tenancies Amendment Act 2010 (2010 No 95).

Section 44(2A): inserted, on 1 October 2010, by section 28(3) of the Residential Tenancies Amendment Act 2010 (2010 No 95).

Section 44(4): replaced, on 1 May 1996, by section 5(2) of the Residential Tenancies Amendment Act 1996 (1996 No 7).