Almost all states do not grant tenants, by default, the right to sublease. Instead, they must have explicit, written consent from the landlord to do so. If such consent was not included in the lease, the landlord reserves the right to deny future requests.
Does a Tenant Need the Landlord’s Permission to Sublet?
A tenant does need a landlord’s explicit written consent to sublet. Either the original lease or a separately signed agreement can provide this consent.
Even if permission to 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 the lease agreement to see what language it includes about subleasing. The four most common scenarios of sublease language in a lease agreement are:
- A 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 clause requiring a landlord’s written permission to sublease
“The Tenant shall not assign or sublet any part of the leased premises without prior written consent of the Landlord.”’
- A clause allowing a 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.”
- No language or clause whatsoever about the permission to sublease
Can a Landlord Prohibit a Tenant from Subletting?
Unless prior written consent has already been granted, a landlord can prohibit a tenant from subletting. A landlord reserves the right to deny any and all future requests from a tenant to sublease.
Denials generally occur for reasons such as:
- A landlord’s belief that the proposed tenant would not be able to meet the financial obligations of the lease
- The need for alteration to the premises for the use of the proposed assignee or subtenant
- A landlord’s good faith reliance on information from third parties of the proposed tenant’s inappropriate conduct
- A proposed tenant’s refusal to sign the lease agreement
If the lease agreement already explicitly grants the ability to sublet, then a landlord is unable to prohibit subletting under those terms. The landlord would only be able to forbid subletting by amending the lease or signing a new lease, which must be agreed upon by both parties.
What Rights do Subletting Tenants Have?
A tenant who subleases (“subtenant”) has the same rights and responsibilities as the original tenant. This means the subtenant is treated the same as any other tenant when it comes to rights such as privacy, health and safety standards of a rental unit and due process for an eviction.
However, subtenants cannot sue the original tenant’s landlord when their rights are violated. The subtenant must sue the original tenant, who in turn can sue the landlord if the issue is caused by the landlord (and isn’t remedied in a timely manner after being properly notified).
When a subtenant causes any damage, a landlord will most likely deduct the cost of those damages from the original tenant’s security deposit. The original tenant would then have to sue the subtenant to recover money lost from the security deposit.
What are the Consequences for Illegally Subletting?
If a tenant subleases their unit without the landlord’s explicit written permission, the tenant is in breach of their lease. A lease violation permits a landlord to evict the tenant and subtenant (starting with a Notice to Comply or Vacate) and to sue the original tenant for any resulting damages.
In addition to the landlord, the subtenant also may have grounds to take legal action if the original tenant sublet the unit illegally.