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Lease in My Name if I Don't Live There?

Discussion in 'Property Law Forum' started by Robin, 21 August 2014.

  1. Robin

    Robin Member

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    A close relative is trapped into living in expensive short term rentals because she has been blacklisted due to a member of her family not paying the rent (as he said he had) at a past property. I would be happy to put the lease in my name and be responsible for the rent but am told I can't if I don't live there. Is there any way round this?
     
  2. Tim W

    Tim W Lawyer

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    Have you considered being a guarantor, rather than a fraudulent co-tenant?
     
  3. Robin

    Robin Member

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    Thanks very much for that suggestion. What's involved in going guarantor? Is it just a matter of signing a stat dec or is there some other legal document involved?
     
  4. Tim W

    Tim W Lawyer

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    It's quite tricky.
    Section 160 of the Residential Tenancies Act 2010 (NSW) makes it unlawful for a landlord to accept anything other than a bond as security for the failure of a tenant to comply with the lease.
    This is usually taken to mean, in simple language that "it's illegal to require a guarantor".
    And that's why agents are willing to put another (non-resident's) name on a lease,
    and conversely, why so many people sign up as the kind of phantom tenant you are asking about.

    It's not strictly correct that you have to live in a place on which you have a residential lease...
    For example, a parent can lease a flat for a child (eg while the child is away studying).
    Such an arrangement, if disclosed at the start, is not fraudulent.

    How much do you know about which database your relative is on,
    and how accurate the information is?
     
    John R likes this.
  5. Robin

    Robin Member

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    Thanks Tim. I don't know what database she is on but, unfortunately, I think the information is accurate. The tenancy had been in her name. She is not well and had delegated another family member (living in the premises) to make some of the payments. She thought they had but they hadn't. But the blacklisting has gone against her name as the tenancy was in her name.

    So it sounds as though going guarantor isn't an option. Part of the problem anyway is that there is so much demand for rental properties that it is easy to dismiss anyone who is even slightly problematic.

    I did speak to one agent who said they would not let me sign a lease if I was not living there. I definitely don't want to do anything fraudulent - anything that is not strictly legal or involves lying - but I do want to help. It sounds as though it's possible that if we disclose that I'm not living there, it might be legal for me to sign the lease? So we could at least give it a try on a few properties.
     
  6. Tim W

    Tim W Lawyer

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    It certainly happens.
    Of course, it might have been on instructions from the owner,
    as much as being from that agent's own experience.

    Pretty much.
    Failing to disclose - that would be a problem.
    But making that kind of disclosure, and everyone agreeing to proceed,
    all knowing all about it, no problem.
    Which does not, regrettably, increase your chances of success,
    but will help keep you out of trouble.
     
  7. Robin

    Robin Member

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    Thanks for your help. WE're going to try asking about the leasing option, disclosing that I'm not living there or offering the guarantor option. But as you say, it probably won't increase our chances of success. But we'll see what happens. Anyway, thanks for your help
     

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