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Subletting: Legal Tips for the Tenant and Subletter

By Home Mortgage Zillow

For many tenants, the demands of family, career or military responsibilities make it difficult to stick to a strict one-year lease agreement — making a sublease or sublet an attractive alternative to paying the balance of the agreement.

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A sublease is an “assignment” of the original lease agreement terms to a third-party who was not involved in the original agreement. This means that the subletter is not only responsible for the duties and obligations listed in the lease, but enjoys the rights and amenities as well. Accordingly, it is almost always necessary to run this plan past the landlord.

Here’s how to manage a subletting arrangement legally and effectively.

Notify your landlord and get them onboard

Nearly all residential leases contain a clause pertaining to subleasing. Some forbid it outright. Others take a more liberal approach and allow tenants to freely sublease. Most common, however, is the middle-of-the-road option that gives the landlord final say over whether a sublease arrangement is allowed.

In most scenarios, signed written consent will be required from the landlord prior to subleasing with a third-party. Legally speaking, this protects the landlord from damage caused by unknown, unapproved subletters, and also protects the tenant from an attempt by the landlord to avoid damage liability by a subletter he “knew nothing about.”

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Some states forbid a landlord from arbitrarily or unreasonably withholding consent to a sublease. If you’re facing an uphill battle with a landlord who is refusing to allow a sublease to a great candidate, a landlord and tenant lawyer may be able to help.

Understand the legal relationship and obligations

As a tenant, it may seem like you can wipe your hands of the lease agreement once a sublessee is securely in place. After all, damage or late rent is on them — right?

Probably not.

Because of ancient property interest laws — and a concept known as “privity of contract” — the original legal agreement between the tenant and the landlord remains alive and well, even with a signed sublease.

By agreeing to sublease, the landlord has agreed to collect rent from the subletter first, and ask the subletter to make necessary repairs to the unit. But if the subletter skips town or refuses to comply, the landlord can seek reimbursement from the original tenant — even if she had nothing to do with the damage.

So if you’re choosing to sublease, be sure to find a reliable and dependable person to take over the balance of the lease.

Sign a sublease agreement

Signing a sublease agreement is a smart way to protect the original renter from liability caused by the subletter. The landlord can still come after the original tenant for late rent or damage to the unit if the subletter falls down on their duties, as discussed above. But a proper sublease can give the tenant some legal ground to stand on if they want to then seek compensation from the subletter.

Likewise, the sublease agreement can also protect the subletter from unreasonable claims by the original tenant, including damage that occurred before the subletter moved in.

Collect a security deposit

For extra protection, the original tenant may want to require a security deposit from the subletter. Tenants should request enough for at least two months’ rent, and the amount should be kept in a non-interest-bearing escrow account.

The security deposit can be used in the event the landlord demands repayment for damage to the unit or unpaid rent. And, of course, the tenant should return all funds to the subletter if/when the sublease term ends without incident.

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Note: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinion or position of Zillow.