Do: Check Your Lease Agreement
The right to sublease all or a part of a rental unit, which includes adding a new roommate, often depends on whether the Lease Agreement allows it. In general, if your lease does not mention subleasing, it is usually permitted. Most leases do require the landlord's Consent to Sublease, as well as the landlord's approval of any new subtenant. When an agreement does not mention subleasing, tenants may still want to consider talking to their landlord first to 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 even if the lease agreement prohibits it.
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 has a lower credit score than the landlord normally requires, the landlord may prohibit you from subleasing to that person.
Do: Understand Your Relationship Under a Sublease
It is important to understand that tenants are creating a new and distinct legal relationship between themselves and the subletter. The tenant offering the sublease becomes the primary tenant, and the new tenant is their subtenant.
The relationship between a primary tenant and landlord remains intact. This means that 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 they did not pay.
Do: Ask Your Landlord
Lease Agreements often require that tenants get permission from their landlord to sublease their rental unit. Regardless of whether your agreement requires a landlord's approval to sublease, securing a landlord's go-ahead is a good way to avoid any future disputes that may arise during sublease. A primary tenant may want their landlord’s help, or cooperation, if evicting the subtenant, or taking another type of action, is necessary.
Additionally, it may be required that a primary tenant obtain their landlord's consent when subletting or bringing in a new roommate. State and local laws typically prohibit landlords from unreasonably withholding their consent of the prospective subtenant. Generally, unreasonably withholding consent means that a landlord rejects a subtenant who would otherwise meet their regular and reasonable application standards.
If you have questions about the process, reach out to a Rocket Lawyer network attorney to learn about and protect your rights.
Don't Sublease to Just Anyone
Once a sublease is signed, a new legal relationship is formed with the subletter that entitles them to certain rights. The primary tenant is ultimately liable if the subtenant does not pay their rent or causes damage to the property. If this occurs, however, it can cause delays for landlords in receiving their rent, or repairing their property.
It is important to properly screen any prospective subtenant by verifying their income, running a credit check, and contacting their past landlords.
For primary tenants, running the same application screening process that your landlord ran on you when you applied for the rental unit can help avoid issues with obtaining your landlord’s consent as well.
Don't Assume You Can Charge More
In areas with ever-increasing rents, it may be 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. There are, however, local laws in rent controlled cities, such as in New York and San Francisco, that prohibit a primary tenant from charging a subtenant more than a fair and proportional share of the rent under the Lease Agreement. In short, in areas with strong renter protections, you may not be permitted to make a profit off the rental unit as a primary tenant. Be sure to check your local laws on whether charging more is permissible in your city and state.
Don’t forget to explore alternatives
Subleasing can help to reduce living costs, replace roommates, and can help landlords keep units occupied when tenants may be away for extended periods of time. Subleasing, however, creates legal complexity which leads to risk. Alternatives can include:
- Completing a Lease Amendment to include a new roommate. This avoids the complex primary and subtenant relationship.
- If a tenant is moving and not planning to return, and has a new tenant lined up, a Lease Assumption or Lease Assignment may be appropriate.
- If a tenant is moving and not planning to return, another alternative can include an Agreement to Cancel Lease, to allow a landlord to turn the unit over to a new tenant.
If you have questions about subleasing, whether you are an established landlord or a first-time tenant looking for a new roommate, reach out to a Rocket Lawyer network attorney for affordable legal advice.
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.