November 1, 2016
5 Minute Read
By Elizabeth Weiss, Avvo contributor
Finding a tenant for your property is a multilayered operation. You’ve done the tenant background check, the credit check, the meet-and-greet. You are satisfied with the candidate’s reliability and have agreed to lease them your home for a period of time. Now, your reliable tenant wants to sublet the place to potential strangers. And it’s up to you to decide if you are willing to allow the sublet.
A sublease “assigns” the original lease to a third party who was not part of the original agreement. This move officially makes the subletter (also known as the subtenant) responsible for the rent payment and all the obligations (and perks) included in the lease. Often the subletter pays the rent to your original tenant (the sublessor), who in turn pays the rent to you.
Chances are you already have a sublease clause in your standard lease agreement, either expressly forbidding subletting or setting out the terms under which it is allowed. At the very least, your standard lease agreement should state that the tenant cannot create a sublease agreement without your knowledge or permission.
“All landlords should include a clause in their lease agreement that requires tenants to get written approval from the landlord for subleases,” says G. Brian Davis, real estate investor and co-founder of Spark Rental. “There are places where landlords can’t outright ban subleasing, like New York City, but landlords reserve the right to decline subleases on a case-by-case basis.”
Landlord-tenant law provides several ways to approach the idea of subleasing. It may be in your best interest to permit subletting, perhaps with caveats. And in other situations it would be wise to just say no.
Here are pros and cons to consider:
“There are temporary subleases and permanent lease assignments. A temporary sublease involves the tenant vacating for a short period and having someone else pay to stay there,” says Davis. The tenant will return to the property before the end of the lease. “Permanent lease assignments occur when a tenant wants to move out early, and wants someone else to take over their lease,” says Davis. In either event, someone will be paying rent, so your property won’t just be sitting vacant.
Temporary subleasing is often a risk, especially if you haven’t reserved the right to thoroughly screen subtenants. “The landlord has no way of knowing who the temporary residents are, what kind of damage they might do, what kind of criminal record they have. And then there are the noise complaints from neighboring tenants — the most common complaint about short-term guests,” says Davis. All of this can cost you money — to repair damages to your property or to your reputation as a landlord. But prohibiting your tenant to assign their lease could also mean you risk the tenant simply abandoning the property, potentially in bad condition, leaving you in the lurch.
Perhaps a job change, military demand or family situation has prompted your tenant’s request to sublet. Maybe they don’t want to give up their apartment completely, or they don’t want to face the penalties that would come with breaking their lease, but they are unable to stay in the place for the time being. It’s a win-win situation if your tenant has already found someone to take over their lease, but proceed with caution…
Just because your tenant likes or trusts a subletter doesn’t mean the subletter fits your idea of a good tenant. It’s unwise to relinquish control over tenant screening to a renter who may not really care about finding a high-quality replacement. “Subtenants should be vetted with the same degree of scrutiny as tenants,” says Jeffrey R. Homapour, a New York City attorney who focuses on landlord-tenant litigation. “Landlords should inquire as to their ability to pay the rent, rental history, reasons for subletting, credit history and overall character. Subtenants who are typically shorter-term occupants have less of an incentive to keep neighborly with other building residents, leading to disturbances.”
Make sure that your tenant executes a sublease agreement with the subtenant, as it will give you some legal recourse should things go sideways. A standard sublease agreement form will identify the responsibilities of the tenants involved, whether primary or subletter. “A subtenant who fails to pay the rent to the tenant may leave the tenant holding an empty bag and unable to pay the rent while they are away,” says Homapour. A subletter who doesn’t cough up the rent or creates damage leaves the primary tenant liable. The sublease agreement form gives a landlord permission to collect payment or damages from the subletter and, barring their refusal, the original tenant, even if the original tenant has nothing to do with the problems.
Sometimes a canny tenant might tack a surcharge, say 10 percent, onto the subtenant’s rent, seeing an opportunity to retain their apartment while producing a little extra income. However, “It is not the tenant’s business to be leasing or subleasing property at a profit,” says Scott Rekant, an attorney with Cullen and Dykman in New Jersey. He notes that many leases that allow sublets not only require the landlord’s consent to the sublease but also stipulate that any rent paid by the subtenant over and above the original tenant’s rate be paid to the landlord.
Remember, you, as the landlord, have the final say when a tenant needs to vacate the property temporarily. You can let your tenant out of the lease completely (with or without financial penalty), or you can allow them to sublease the property. “Subletting can be beneficial if a good-standing tenant has a legitimate reason for their absence from the apartment and the landlord would like to continue the relationship when the tenant returns,” says Homapour. On the other hand, terminating the lease lets you say goodbye and good riddance to a troublesome tenant.
Tip: Zillow Rental Manager offers state-specific, customizable online lease agreements for free. This feature is currently available in select locations.
Elizabeth Weiss is a freelance writer and web content developer. Her work has appeared in Forbes, Reader’s Digest, Playboy, Marie Claire, and other print and online publications. Elizabeth also writes about legal issues in everyday life on the Avvo Stories blog.
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