Tenants often ask their landlords for permission to sublease the rental when they would like to leave before the lease is up, or they want to temporarily turn the rental over to someone else, or they’d like to bring in a resident who will not join the lease. Most leases and rental agreements require tenants to obtain the landlord’s permission before subleasing. A sublet agreement should be signed by the original tenant, the subleasee, and the landlord.
When tenants move out before the lease is up, in most situations they will continue to be responsible for the rent for the balance of the lease term until the landlord re-rents (landlords in many states must take reasonable steps to find a replacement tenant). To avoid having to pay rent while the landlord looks for a new tenant, smart tenants try to find a replacement who will move in right away.
When the replacement takes over for the rest of the lease as a subtenant, that new resident is technically renting from the original tenant, who is now a sublandlord. The original tenant remains in the picture, as a kind of guarantor of the subtenant. For example, if the subtenant fails to pay the rent, the landlord can demand the rent from the original tenant. And if the landlord wants to evict the newcomer, the landlord must also name the original tenant in the eviction lawsuit.
Tenants who are leaving permanently but do not want to remain on the hook for rent may want to propose one of two alternatives to a sublease: Terminating the tenancy, or assigning the lease.
The cleanest way to leave a tenancy is to terminate the original lease and have the new resident sign a new, separate lease with the landlord. The old tenant has no lingering or potential responsibilities, and the new tenant has a direct relationship with the landlord. Without the original tenant as an intermediary, the new tenant can make requests and demands directly to the landlord. Naturally, the landlord must agree to this solution, and may resist if it wants the old tenant in the background as a potential source of rent. On the other hand, a three-way set up is cumbersome and many landlords would prefer to have a simple and direct relationship with just one tenant.
Assigning a lease is the next best thing after terminating. With an assignment, the newcomer steps into the shoes of the old tenant, and assumes the rights and obligations of the old tenant’s lease. Typically, the tenants and the landlord write “Assigned to” on the lease, write the new tenant’s name, and everyone signs off on the deal.
Importantly, unless the landlord specifically agrees, the old tenant will remain responsible for the rent, as happens in a sublet. Departing tenants who want to avoid this outcome must obtain the landlord’s specific, written agreement not to hold the original tenant responsible.
Learn more about How to Read Your Lease.
When tenants want to move out for a period of time—such as over the summer, or for a temporary job transfer—they understandably don’t want to pay for a rental they’re not using. But as with a permanent sublet, a temporary one requires the landlord’s consent, and the permanent tenant remains responsible for the rent if the subtenant hasn’t paid.
Temporary sublets can become tricky—it’s not unheard of for returning tenants to have arguments with their replacements, who claim that the place is now theirs. For this reason, it’s important to have a clear, written sublease that covers move-in and move-out details.
Finally, some tenants may want to bring in a roommate but not make this person a full-fledged cotenant, who would have equal rights and responsibilities. Like the other two types of sublets, the new resident answers directly to the original tenant, and has no direct legal relationship with the landlord.
Bringing in a roommate who will sublet, rather than join the lease, means that the original tenant will have termination and eviction rights over this resident. If the new resident were a cotenant, on the other hand, only the landlord could evict.
Most savvy landlords will resist allowing a resident to live on the property but not join the lease as a full-fledged cotenant. If the new resident were on the lease, the landlord could demand the entire rent from that person; but when the resident is a subtenant, the landlord can look only to the tenant for payment. Obviously, it’s to the landlord’s advantage to have multiple sources of rent.
Landlords who are considering a tenant’s request may want to consult with a lawyer familiar with their state’s laws. Like a lease, a sublease or sublet agreement (or an assignment) should be clear and legal. Tenants who wish to sublease (or to move in as a subleasee), or take over a lease in an assignment, may also want to make sure that the agreement they sign (or lease that’s now theirs) is fair and legal.
Learn about Key Terms in a Residential Lease Agreement.