Can a landlord make a subletter pay rent or back rent?
A landlord’s ability to collect rent from a subletter who owes rent depends on the situation. The default rule is that the subletter pays the tenant, then the tenant pays the landlord. The landlord's Lease Agreement is with the tenant, not the subtenant, so the landlord looks to the tenant for rent and any late payments or back rent. The tenant is responsible for making full rent payments to the landlord, even if the subtenant is late handing over their portion. Tenants can protect themselves by creating a Sublease Agreement with their subtenants.
It is possible to draft a Sublease Agreement that requires the subletter to pay the landlord directly. It may even be possible to offer a Lease Amendment to add the subletter to the lease. Without being added to the lease, depending on the jurisdiction, payments from a subletter may be treated as if they were made on behalf of the tenant. In some areas, a landlord may not be able to sue the subletter for delinquent rent, even though they may evict both the tenant and subletter for non-payment. Since this depends on both local law and the lease agreement, it's important to ask a lawyer about your particular situation.
A sublease is different from a Lease Assignment where the new tenant may completely supplant the original tenant. Under a Lease Assignment, the original tenant may no longer have any obligation to the landlord, and the new tenant assumes the liabilities of the original lease.
Can landlords require subletters sign a new agreement to stay?
A landlord may or may not be able to require a subletter to sign a new agreement to stay. Local law may give the tenant the right to sublet by default, limit the landlord's ability to restrict subletting, or limit what the landlord can require when a tenant sublets. Landlords should know, however, that in areas that have strong protections for subletters, the tenants doing the subletting are often subject to stringent requirements and treated as a landlord themselves.
Often leases will require tenants to make their prospective subletters complete an application, be approved by the landlord, sign an agreement, or meet other requirements, if allowed by local law, before they can sublet.
Can a master tenant, landlord or property manager evict a subletter?
Landlords are not the only ones who have difficulty with subletters. Sometimes tenants end up with subletters who do not want to leave. In these situations, the master tenant, or the tenant that signed the sublease with the subtenant or subletter, will need to file a court action to evict their subletter. Like any other tenant, subtenants must be evicted properly through the courts, or a master tenant or landlord could face severe legal consequences.
Generally, a master tenant, landlord or property manager may evict a subletter for the same reasons as they would a tenant. This might include for non-payment, staying beyond the term called for in the agreement, causing damage, or violating the lease or sublease’s rules. The Eviction Process Worksheet can help guide you through the eviction process.
An Eviction Notice may name everyone on the lease and all known occupants. This includes the original tenant and any subletters. If you do not know the name of the subletter or believe there may be other occupants, you may be able to include language such as "unknown person" or "and all other occupants."
The exact procedures for how to name subletters or unknown parties as well as how to properly serve the Eviction Notice depend on state or local law. Once you serve notice, the eviction proceeds through the court, so it’s important to get the Eviction Notice right, or the case could be delayed. Checking in with a Rocket Lawyer On Call® attorney to answer your questions or for an affordable consultation will help ensure your paperwork is in order before you move forward.
Is the tenant or subletter liable for damages and back rent?
If the landlord's contract is with the tenant, the tenant is responsible to the landlord for damages and back rent. The tenant may sue the subletter based on their Sublease Agreement, if they have one, to recover what the landlord recovers from the tenant. In some situations, the landlord may also sue the subletter based on state or local law, or the Sublease Agreement. Even when a landlord can sue a subletter, the tenant who offered the sublease will still generally be liable to the landlord for back rent and damages.
What can landlords do about unauthorized subtenants?
First, it's important to know what state and local laws say about subtenants. Tenants may have a right to sublet without approval, or the landlord may be required to give approval if certain conditions are met. For example, the landlord may have to give Consent to Sublease to a subletter that meets the landlord's usual application criteria.
Subject to the limits of local law, the options for dealing with an unauthorized subtenant are usually to evict or let them remain. If you are not against having a new tenant, but want to make it legal and protect your rights, you can send the tenant and subletter notice that they violated your subletting rules but you will allow them to sign a Lease Amendment or new Lease Agreement. If you do not want the subletter to stay, you would typically give notice to the tenant and subletter that they must move out or you will begin eviction proceedings. Again, however, a landlord’s ability to evict a tenant, subtenant, or both, will depend on the laws in the area where the property is located.
What rights do subletters have?
A subletter generally has the same rights as a tenant subject to the Sublease Agreement. A subletter is technically different from a tenant, but landlords still have the same obligations to maintain the property in habitable condition and to not evict subletters without a court order.
A subletter usually has the same legal rights as a tenant in a potential eviction, and will be subject to the same renter protections provided by state or local law. One significant difference is that since the landlord's contract is with the tenant, the subletter may have to go through the tenant for payments and maintenance requests. Landlords, however, can communicate with subtenants, accept payments directed to them, and perform maintenance as called for in the lease.
If you are having problems with a tenant or subletter, or just want to learn more about your rights and the laws in your area, talk to a Rocket Lawyer On Call® attorney.
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.