Do: Check Your Lease Agreement
Your right to sublease all or a part of your rental unit, which includes adding a new roommate, depends on whether your rental lease agreement allows it. In general, if your lease doesn’t mention subleasing, it is usually permitted. However, most leases do require that you obtain your landlord’s consent to sublease as well as your landlord’s approval of any new subtenant. Whether or not your rental lease is silent on subleasing, consider contacting your landlord before subleasing to help maintain a good landlord-tenant relationship.
Many states and local municipalities have laws governing a tenant’s right to sublease. These laws may permit you to sublease even if your lease forbids it. For example, in New York City, if you live in a building with four or more units, you may sublease your apartment regardless if the lease agreement prohibits subleasing.
In San Francisco, you may replace any departing roommates on a one-for-one basis, as long as the replacement roommate meets your landlord's application screening standards. For example, if the prospective tenant to sublease has a lower credit score than the landlord normally requires, the landlord may prohibit you from subleasing.
Do: Understand Your Relationship Under a Sublease
It is important to understand that you are creating a new and distinct legal relationship between yourself and the person to whom you are subleasing. At the same time, the relationship between you and your landlord remains in tact. If you choose to sublease, you will still remain liable to your landlord for all the terms under your lease agreement. For example, if the new subtenant does not pay rent for two months, you are liable to your landlord for that rent amount (and the inevitable late fees). In turn, the subtenant is liable to you for the rent he/she has not paid.
It goes without saying that subleasing has its risks. If you are moving out of town and plan not to return, try to end your lease with your landlord and avoid any possible headaches that may arise with subleasing your rental unit.
Do: Ask Your Landlord
Your lease agreement may require that you get permission from your landlord to sublease your rental unit. Regardless of whether your rental lease agreement requires you to obtain your landlord’s approval to sublease, securing your landlord’s go-ahead is a good way to avoid any future disputes that may arise from your sublease.
Additionally, many state and local laws require you to obtain your landlord’s consent when subletting or bringing in a new roommate. These same laws also prohibit your landlord from “unreasonably” withholding their consent of the prospective tenant to sublease. Generally, unreasonably withholding consent means that a landlord rejects a subtenant who would otherwise meet the landlord's regular and reasonable application standards.
Don’t Sublease to Just Anyone
Once you sublease, you are in a legal relationship with the person with whom you decide to sublease. You are also liable if the subtenant does not pay their rent or causes damage to the property. Make sure you properly screen your prospective subtenant by verifying their income, running a credit check and contacting their past landlords. Run the same application screening process that your landlord ran on you when you applied for the rental unit.
Don’t Assume You Can Charge More
It is oh so tempting to want to charge your subtenant more rent than what you pay your landlord. In general, you are permitted to charge whatever amount you like. However, there are local laws in rent controlled cities, such as in New York and San Francisco, that prohibit you from charging your subtenant more rent than what you pay your landlord under the lease agreement. You are not permitted to make a profit off the rental unit your landlord owns. Be sure to check your local laws on whether charging more is permissible in your city and state.
You can use subleasing as a great tool to reduce living costs or replace roommates. Understanding a few dos and don’ts will ensure a smooth sublease process while allowin you to preserve a good relationship with your landlord.
About Frederic Goodwill
I am a trial and transactional attorney with over twenty years of experience in courtrooms and boardrooms across the country. I specialize in employment, environmental, insurance, and education law as well as business, estate planning and real estate law. View my website at www.fcg2law.com for more information.
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.