Subletting

A sublease, or sublet, is a transfer of the tenant's right to occupy the rented premises to someone else. The sublease can cover all or a part of the rental property, such as the second story only of a townhome. The tenant remains obligated under the lease agreement for rent if the sublessee fails to pay. Under a sublease, the tenant has the right to reoccupy the premises, taking them back from the person to whom he subleased. For example, the tenant with a 6-month lease who must leave the country for 4 months can sublease his apartment to a friend (now called the "sublessee") while he is gone. If the tenant returns before he expected, he can retake the premises and require his friend to move out.

An "assignment" is similar to a sublease. However, in the example above, if the tenant assigned his lease to his friend, he cannot retake the premises. The lease assignment results in the friend stepping into the shoes of the original tenant. The friend is now the tenant under the terms of the original lease.

Subleases and assignment are commonly prohibited in a lease agreement. Standard lease forms usually allow subletting only when the landlord agrees in writing. However, a tenant does have a right to sublease or assign his lease if there is nothing in the lease agreement or a law that prohibits it. Generally, laws require the prior consent of the landlord if the tenant wants to assign or sublet his lease.

TIP: If you sublease, the security deposit you made may be credited to the sublessee, and you will not receive a refund until the original lease agreement ends. To protect yourself in case of damage to the apartment, collect a security deposit from the sublessee in the same amount as the one you paid to the landlord. When you get your security deposit back from the landlord, you can refund the one you took from the sublessee.

Can I sublet my apartment?

Unless your lease agreement prohibits subleasing, the law allows you to sublet your apartment. However, you cannot lease to a person that you know will not comply with the terms of the lease.

What reasons do I need to sublet my apartment?

You do not need a reason to sublease. Typically, a tenant subleases because of an extended vacation, job relocation, or marriage or family obligations.

If I sublet, do I have to notify the landlord?

Probably. Because the landlord's consent is usually required (under the lease agreement and by law) before a tenant can sublease, you would likely be violating the lease by subletting without telling the landlord and getting his consent.

Caution: Check the rental laws in your state. Many have laws prohibiting a sublease without the landlord's consent.

The act of subletting your apartment in violation of the lease agreement does not in and of itself terminate the agreement. Although subletting without notifying the landlord and getting his consent is probably a default under the terms of the lease, the landlord may decide to terminate the lease and evict you (and the sublessee). For example, standard lease forms allow the landlord to "end the tenant's right to occupancy" on 24 hours notice for any default. After notice from the landlord, you would have 24 hours to remove the sublessee and be back in compliance with the lease.

Does the landlord have to consent to a sublease if I find a reputable person to move in and sublet my apartment?

Not really. If the lease agreement and the law prohibit subletting without the landlord's consent, he does not have to consent to the sublease. And unless a clause in the lease states that the landlord may not withhold his consent unreasonably, you should probably assume that he is not even required to be reasonable in making his decision. He can refuse for any reason or no reason at all.

A few state laws may require the landlord to be reasonable in giving his consent to a residential sublease. New York law, for example, states that the landlord's "consent shall not be unreasonably withheld." In these states, the landlord must consent to a sublease to a reputable person of the tenant's same character.

Commercial leases are somewhat different, often requiring that the landlord be reasonable in granting consent to a sublease.

My landlord has consented to the subleasing of my apartment. Can I sublease my apartment for the rest of the lease term?

Yes. You can sublease if you have no intention of returning to the premises. However, you are ultimately responsible for complying with the lease agreement provisions regarding termination. You must notify the landlord, in writing, 30 days before it expires that you will not be renewing the lease. The sublessee and the landlord can make their own agreement to lease after your original lease terminates; you have no involvement in the new lease agreement.

Who pays the rent in a sublease?

The original tenant must continue to pay the rent. The tenant collects the money for rent from the sublessee and makes the rental payment.

In some cases, the landlord may agree to accept the rent from the sublessee directly. If the landlord is a party to the sublease, he can agree to accept rent from the sublessee, without letting the original tenant out of her responsibility to pay the rent under the original lease. However, the original tenant could then argue that the landlord's acceptance of rent from the sublessee means the original tenant is not responsible for the rent any longer. To avoid any confusion, contractual responsibilities of the parties should be clarified before the sublessee moves in.

TIP: If you sublease, plan on collecting the rent and paying the landlord yourself. You and the sublessee should have a written agreement as to when and where the sublessee will pay. Have the sublessee agree to pay you 7 days before the rent is due. The extra time will give you the opportunity to resolve any rent issues that might arise between you and your sublessee.

If I sublet, do my furniture and other possessions stay in the apartment?

Quite often, yes. Part of the reason a sublease is attractive to a tenant is that he does not have to actually move his things while he is gone. Your sublet agreement should include a provision requiring the sublessee to care for and maintain your furnishings.

Is a written agreement required if I sublease my apartment?

There is no requirement for a written sublease agreement. However, without one, you cannot enforce the sublease. For example, the person to whom you subleased can move out before the time you agreed on.

A written sublease protects both of the parties. You have a written agreement from the sublessee that she will pay the rent on time and comply with other provisions of the original lease, and the sublessee has proof of her right to occupy the premises for the length of the sublet agreement.

A sublet agreement should include:

• The date
• The name each of the parties
• The address of the premises to be subleased
• The date the sublease begins
• The date the sublease ends
• The amount of the rent
• The date the rent must be paid by the sublessee to the tenant or to the landlord if he has agreed
• The form of rent accepted (cash only, for example)
• The amount of the security deposit the sublessee must pay and the conditions for its return (e.g., you will "return the security deposit when the landlord refunds the tenant's original security deposit")
• A statement that sublessee must care for and maintain furnishings and other items left in the apartment
• A statement that sublessee is responsible for damage to tenant's furnishings left in the apartment
• The replacement cost or the amount sublessee owes for damage to tenant's furnishings
• The amount of tenant's original security deposit; sublessee will be responsible for any portion not returned to tenant
• The signature of both of the parties
• The signature of the landlord, if his consent is required or he is a party to the sublease

The agreement does not have to be lengthy. The items listed above can be covered in three or four paragraphs.

TIP: Your landlord may have to approve the sublet agreement under the terms of the lease agreement. If this is the case, show the sublet agreement to him before you go to the trouble of having the sublessee sign it.

Do I still have any responsibilities once I sublet?

Yes, not only are you obligated to make sure the rent is paid, you are ultimately responsible for any damage to the premises while they are sublet. For example, if the person to whom you sublet your apartment breaks the glass in a patio door, you are liable for the landlord's repair costs.

I am leasing a house. If I take in a boarder or roomer, am I subletting?

No. You are not putting your boarder in possession of the entire rental premises. She only has the right to occupy a room. The landlord may argue that the tenant has violated the lease agreement's prohibition against subletting by taking in a boarder. However, courts have held that an occupant is not a tenant and there is no violation of the lease agreement.