Renthelper.net: Subleasing

What you need to know about subleasing

In general, a sublease is a legal agreement where tenants transfer their interest in the rental premises to a subtenant. A sublease should be in writing.

Before subleasing, read your lease. A sublease will be permitted without the landlord’s consent if it is not prohibited by the lease. However, a tenant’s right to enter into a sublease may be expressly prohibited or restricted by the landlord. These restraints must be clearly expressed in the lease/rental agreement or the courts will not enforce them. Landlords usually require written consent to subletting.

You must understand that a sublease is a contractual relationship between the tenant and the subtenant. The relationship between a tenant and a subtenant is essentially the same as the relationship between the landlord and the tenant. In general, the liabilities of the parties to each other are governed by the same rules that apply to the lease. From the time the subtenant takes possession of the leased premises, he/she becomes a tenant of the original tenant.

A tenant who subleases his interest in a leased premises to a third party (the subtenant) is not released from the obligations under the lease/rental agreement. The tenant is still liable to the landlord for rent and all other provisions contained in the lease.

There is no direct contractual relationship between the landlord and the subtenant. Therefore, the subtenant has no direct righta against the landlord under the terms of the original lease/rental agreement. This also means that a subtenant is not liable to the landlord for rent or for breach of any terms in the original lease agreement. However, the subtenant may be liable to the landlord if he/she expressly assumed the terms of the original lease/rental agreement.

Common Questions and Answers

Q. If a landlord refuses to give consent to a sublease, must they give reasons for that refusal?

A. If the lease/rental agreement expressly prohibits subletting, a landlord does not have to give a reason for the refusal. On the other hand, if the lease contains a provision making the landlord’s consent optional, then the landlord must show that their withholding of consent is not based on arbitrary or unreasonable grounds.

Q. How does a landlord waive a restriction against subletting?

A. If a landlord has knowledge of a subtenant and accepts rent from that subtenant, then the subtenant can claim that any restriction or prohibition against subletting has been waived.

Q. If a subtenant defaults in rental payments and is evicted from the premises, is he/she liable to the tenant for rental payments accruing after his eviction from the premises?

A. No.

Q. Can a subtenant be held personally responsible for breach of any term contained in the original lease/rental agreement?

A. A subtenant is personally liable only for the terms expressly provided for in the sublease. A subtenant is not liable to the tenant for any of the tenant’s obligations under the original lease unless they are specifically stated in the sublease. If the subtenant did not expressly assume the tenant’s terms in the sublease, it must be shown that they agreed either to abide by them or that they had knowledge of them, in order to impose liability on them for breach of contract.

Q. Will a tenant be liable to a landlord for damages caused to the rental unit by the subtenant?

A. Yes. The subtenant stands in the shoes of the tenant. Their negligent activities can be imputed to the tenant. A tenant will be free of liability for the actions of the subtenant only if the subtenant has expressly assumed all obligations under the lease agreement and the landlord has expressly released the original tenant from such obligations.

Q. Will a sublease be terminated automatically if the landlord terminates the original lease/rental agreement for breach of a covenant or term?

A. Yes. The subtenant holds subject to the terms and conditions of the original lease/rental agreement. They can have no greater rights than those of the original tenant who originally entered into that agreement.

Q. If a subtenant defaults in rental payments, who is responsible for paying the rent?

A. The original tenant. However, the subtenant owes that amount to the original tenant.

Reprinted with permission from
The Center for Student Advocacy
8 North Court Street, Suite 413
Athens, Ohio 45701
(740) 594-8093
Fax: (740) 592-1495
e-mail: csa@frognet.net


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