Massachusetts does not have any specific statutory provision regarding subleases. Therefore, by default, a tenant is free to sublet so long as they receive the landlord’s consent and the lease does not specifically prohibit it. Even though there may not be a specific provision prohibiting a sublease, the landlord reserves the right to deny future requests.
Does a Tenant Need the Landlord’s Permission to Sublet in Massachusetts?
Because state law is silent on the rights to sublet, a tenant can sublet as long as they receive the landlord’s permission and there is no clause in the lease prohibiting it.
Even if permission for a sublet is granted, a landlord is allowed to screen potential subtenants and deny them for legally acceptable reasons.
Tenants interested in subletting should start by reviewing their lease agreement to see what language it includes about subleasing. The most common scenarios of sublease language in a lease agreement are:
- A clause strictly prohibiting subletting
- A clause requiring a landlord’s written permission to sublease
- A clause allowing a tenant to sublease (without additional permission)
- No clause whatsoever about the permission to sublease
1. Lease Clause Strictly Prohibiting Subletting
“The Landlord and Tenant agree that the Tenant shall not have the express and unqualified rights to sublease the rental premise”.
A signed lease may explicitly state that the tenant is not allowed to sublease. In this situation, a tenant’s only option is to ask the landlord to make an amendment to the lease.
2. Lease Clause Requiring a Landlord’s Permission
“Tenant shall not assign or sublet any part of the leased premises without the prior written consent of the Landlord”
In this situation, a tenant could be allowed to sublet, but must receive additional written consent from the landlord prior to doing so. However, if asked, the landlord is not required to grant such permission.
3. Lease Clause Allowing Tenant to Sublease Without Additional Permission
“The Landlord and Tenant agree that the Tenant shall have the express and unqualified rights to sublease the rental premise”.
In this situation, the tenant can immediately begin subleasing the property without needing to get the landlord’s permission. It may also mean the tenant doesn’t have to inform the landlord of their intent to do so, depending on whether the clause doesn’t explicitly require this.
4. Entire Lease Containing No Mention of Subleasing
If a lease is silent about subleasing, then the tenant is free to sublet so long as they have the landlord’s permission first. If asked, the landlord is not required to grant such permission.
Can a Landlord Prohibit a Tenant from Subletting in Massachusetts?
Unless prior consent has already been granted, a landlord can prohibit a tenant from subletting in Massachusetts. A landlord reserves the right to deny any and all future requests from a tenant to sublease.
Usually, denials will occur if the prospective sublessee would be unable to meet the financial obligations of renting out the premises. Another situation where denial could occur is if the landlord believes the future sublessee is not reputable and could potentially put the landlord in a worse position.
However, if prior consent was already explicitly granted in writing, a landlord cannot prohibit subletting under those previously agreed terms. The landlord’s only option would be to amend the lease or sign a new agreement to forbid subletting, which requires the agreement of both parties.
What Rights Do Subletting Tenants Have in Massachusetts?
A tenant who subleases (“subtenant”) has the same rights and responsibilities as the original tenant. This means the subtenant is treated the same way as any other tenant under Massachusetts law when it comes to rights such as privacy, health and safety standards of a rental unit, and due process for eviction.
However, if these rights are violated, subtenants in Massachusetts cannot sue the original tenant’s landlord. Instead, a subtenant must sue the original tenant for the issue. The original tenant can then in turn sue the landlord if the issue is caused by the landlord (and isn’t remedied in a timely manner after proper notification).
Subtenant Rights in Illegal Sublets
Subtenants in illegal sublets do not automatically have the legal right to break the terms of their sublease. Even if the landlord did not consent to the sublease, the contract may still be considered valid between the subtenant and the tenant.
Generally, any sort of legal action against an illegal subtenant will take the form of an eviction. Unless the lease states otherwise, landlords will give notice that the illegal subtenant has 7 days to vacate the premises. For those illegal subtenants that still do not leave, the next step would be for the landlord to take them to small claims court. The filing fee ranges from $40-$150, depending on the county in which the landlord resides.
What are the Consequences for Illegally Subletting in Massachusetts?
If a tenant subleases their unit without the landlord’s explicit written permission, the tenant is in breach of their lease. In Massachusetts, a lease violation permits a landlord to evict the tenant and subtenant (starting with a 7 Day Notice to Vacate) and to sue the original tenant for any resulting damages.
In addition to the landlord, the subtenant may also have grounds to take legal action if the original tenant sublet the unit illegally.
Evictions for Illegal Subletting in Massachusetts
Landlords in Massachusetts are required to give tenants notice when terminating the tenancy due to illegally subletting.
The notice requirements depend on the type of tenancy:
- Tenants with a Lease. The lease will generally specify—it is typically 7 days.
- Tenants at will. A tenant must be given written notice 30 days, or one full rental period in advance, whichever is longer.
After the notice period passes, the landlord must deliver the tenant a “Summary Process and Complaint.” This form will state the date of the eviction hearing and the date on which the Answer must be filed.
A tenant’s Answer is the written response as to why they should not be evicted. The Answer must be received by the court and the landlord the Monday before the court date. If the judge does not rule in the tenant’s favor, they will execute an eviction order.
A landlord cannot physically evict a tenant without the eviction order. A tenant must receive written notice of the date and time the physical eviction will take place, which is at least 48 hours in advance.
