Read further to learn more about the rules & regulations surrounding subletting in California, whether for residential or commercial tenancy.
What is a Sublease Agreement?
A sublease agreement is used when a tenant who holds a lease with a landlord wants to rent the property to a third party. In simple terms, a sublease agreement allows a current tenant to find another person to pay the weekly or monthly rent. Generally, a sublease outlines similar rights and responsibilities as the original lease agreement.
To understand how a sublease works in the state of Delaware, we can start with the definition of terms that are used to identify the parties under the original lease and the parties to the sublease:
- Lessor: This is the landlord in the original lease.
- Lessee: This is the tenant in the original lease.
- Sublessor: This is the tenant in the original lease that becomes the landlord for the sublease.
- Sublessee: This is the tenant in the sublease.
The lessor usually has the right to approve the sublessee; however, the lessor, who is the landlord on the original lease, may not want to contract directly with the sublessee. The lessee, who is the tenant under the original lease, remains 100% responsible for the lease agreement and is responsible for whatever is done by the sublessee. For this reason, it is critical to choose a sublease tenant very carefully.
Delaware has strict laws regarding subleases. Tenants must have a thorough understanding of these laws prior to subleasing their unit in order to avoid preventable penalties. This section details sublease regulations that apply in the state of Delaware.
A sublease provision may allow a portion or all of a rental unit to be subleased to another party. If a landlord permits a sublease, this needs to be explicitly stated in the lease agreement along with any terms and conditions of subleasing that may apply.
If a sublease provision does not exist in the lease agreement this must be negotiated with the landlord to create a written addendum to the agreement that permits subleasing.
Background Check of Potential Sublessee
Normally, a landlord will apply the same strict requirements for a sublease tenant as applied to the original tenant. An application from a potential sublease tenant should include permission to conduct a background check and a credit check on the applicant.
It is in the interests of the original tenant to conduct due diligence on the applicant for the sublease as well. The landlord and the original tenant should both be equally concerned about the qualifications of the sublease applicant.
Lessee is Responsible for Sublessee
Even though the sublease agreement should make the sublessee responsible for certain things, like the damages caused by them, the ultimate responsibility for what happens remains with the original lessee.
Sublessee Must Follow Original Lease Terms and Conditions
The terms and conditions of the original lease apply to the lessee and the sublessee. The easiest way to legally contract for this requirement is to refer to the original lease in the sublease agreement.
Have a provision in the sublease agreement that makes the sublessee responsible for following the terms and conditions of the original lease. In this provision, identify the original lease by its name and the date it was signed. Attach a signed copy of the original lease to the sublease agreement.
Discrimination Not Allowed
The federal laws under the Fair Housing Act prohibit discrimination against a person for reasons of color, disability, race, heritage, gender, marital status, or religion. Discrimination against people with children is not allowed unless the rental unit has a legal exception for being in an age-restricted facility.
Delaware law limits a security deposit to one month’s rent and an additional one month’s rent for a pet deposit if pets are allowed. The deposits must be refunded, less any applicable expenses for cleaning and damage, within 20 calendar days after a tenant moves out.
Lead-Based Paint Hazard
Any sublease agreement is the same as any other lease. Under federal law, there is the requirement for giving a prospective tenant a copy of the EPA publication about the hazards of lead-based paints if the residential rental unit is a building that was built before 1978.
Writing a Delaware Sublease Agreement
Here is a list of the things to include in a sublease agreement for a residential rental unit in Delaware:
- Parties to the Agreement: Give the legal names and addresses of the sublessor who is the tenant under the original lease and the sublessee who is the sublease tenant.
- Landlord Contact Information: Even though the landlord in the original lease is not necessarily a party to the sublease agreement, give the contact information for the landlord and the property manager, if any, for the sublease tenant to use in the case of an emergency.
- Rental Unit: Identify the rental unit, or portion thereof, by its address and description that matches the description given in the original lease.
- Sublease Term: Give the length of the sublease or note if the agreement is on a month-to-month basis. Show the start date and the end date of the sublease.
- Utilities: List the utilities that the sublessee has to pay. If utilities are shared, indicate the portion of the utilities that the sublessee is responsible for paying and the date each month that utilities must be paid. Show the mathematical calculations used to allocate the portions of any utility bills. The sublease tenant can only be charged what the public utility would charge for the same utility service.
- Deposits: List the amount for security and pet deposits, if any. These are limited to a maximum of one month’s rent each.
- Damages: State that the sublessee is responsible for any damage to the rental unit caused by them or their guests. The actual cost to repair any damage can be deducted from the deposits. If the deposits are not sufficient, then the sublessee is responsible for the excess amount and can be sued if the sublessee fails to pay for them.
- Deposit Refunds: Describe the procedure for the refund of the deposits. Under Delaware law, the amount of the deposits in full, or less any legitimate expenses, must be refunded within 20 days after a tenant vacates the rental unit. The refund check should be mailed to the forwarding address of the tenant who vacates or it can be given to them in person.
- Additional Provisions: Add any provisions that are specific to the rental unit. Refer to the original lease to ensure the tenant conforms to its terms and conditions. Include a copy of the original lease as an addendum to the sublease.
- Legal Notice: Give the contact information to use for legal notice for the parties and note that 60 days written notice is required in advance of termination under regular circumstances.
- Signatures and Dates: Have a place for all parties to sign and date the sublease agreement.
- Witness: It is a good idea to have an adult who is not related to the sublease agreement watch the signing of the agreement and sign as a witness.