South Australian Consolidated Acts South Australian Consolidated Acts74—Assignment of tenant's rights under residential tenancy agreement
(1) A tenant under a
residential tenancy agreement may, by written or oral agreement with
another—
(a)
assign the tenant's interest in the agreement to the other; or
(b)
sub-let the premises to which the residential tenancy agreement relates to the
other.
(2) However, it is a
term of a residential tenancy agreement that—
(a) the
tenant must not assign the tenant's interest, or sub-let the premises, without
the written consent of the landlord; but
(b) the
landlord—
(i)
must not unreasonably withhold consent (unless the
landlord is a registered housing co-operative, in which case the landlord has
an absolute discretion to withhold consent to an assignment); and
(ii)
must not make a charge for giving consent or considering
an application for consent exceeding the landlord's reasonable expenses.
(2a) The absence of
consent does not invalidate an assignment or sublease unless the landlord is a
registered housing co-operative. However, if the landlord's consent to an
assignment is not obtained, the tenant who assigns the interest remains liable
to the landlord under the residential tenancy agreement (together with the new
tenant, who is jointly and severally liable) unless the landlord has
unreasonably withheld consent. This continuing liability of the assignor does
not apply, in the case of a periodic tenancy, to a liability accruing more
than 21 days after the landlord became aware or ought reasonably to have
become aware of the assignment (whichever is the earlier).
(2b) If the landlord's
consent to an assignment is not obtained and the landlord had, before the
assignment, served a notice of termination on the assignor, the landlord may
enforce the notice against the assignee.
(2c) The landlord may
terminate a residential tenancy agreement on the ground that the tenant has
assigned the tenant's interest, or has granted a sub-tenancy, without the
landlord's consent, but only if the landlord has not unreasonably withheld
consent and serves the notice of termination within 21 days after the time the
landlord became aware or ought reasonably to have become aware of the
assignment or sub-tenancy (whichever is the earlier).
(3) The effect of an
assignment under this section is that the assignee is substituted for the
assignor as tenant under the residential tenancy agreement (but the assignor
remains responsible for liabilities that accrued before the date of the
assignment) 1 .
(4) An assignee is
liable to indemnify the assignor for liabilities incurred by the assignor to
the landlord because of a breach of the residential tenancy agreement by the
assignee.
(5) If the tenant
assigns the tenant's interest, an amount paid by the tenant and held by way of
security will (unless the parties agree to the contrary) continue to be held
as security for the proper performance by the assignee of obligations under
the residential tenancy agreement.
Note—
1 If the assignment is made without the landlord's
consent, the tenant may also remain liable under the agreement for liabilities
that accrue later—See above.