How To Sublet Legally
One of the most common questions that we receive at Flip is, “Wait, isn’t subletting illegal?” Well, we’re here to clear the air once and for all. Ahem — NO.
The first thing you need to know about subletting is that it is a very specific rental case. People throw the word “sublet” around for almost every situation where someone not on a lease fills an apartment for a bit — from roommates to part time guests on vacation. Subletting simply means that the original holder of the lease offers the apartment — or, subleases the apartment — to a third party. Technically a sublet is contract between you, your landlord, any co-tenants or guarantors, and the subtenant, wherein the subtenant resides in your absence. With a sublet, the original leaseholder is still responsible for monthly rental payments to the landlord.
Many leases include illegal or misleading terms which prohibit subletting, but these clauses are often contradicted (and are even rendered void by) the law. As long as you receive permission from your landlord, then you are subletting legally.
Check Your Lease
Larger landlords, such as management companies, often have clear processes in place for sublet requests. The sooner you learn these and get the right forms in your hands the better.
Your lease may explicitly prohibit subletting the entire place and require you to fill out certain forms if you want to swap one roommate out for another.
Even if your lease prohibits subletting, the clause could be unenforceable. In most states, the landlord can’t “unreasonably refuse” a subtenant and is obligated to approve a subletting arrangement. The only way a landlord can refuse your sublet request, is if the proposed subtenant could adversely affect her business. If she rejects someone without reasonable cause, you can sue your landlord for her refusal to minimize her losses AKA “mitigate damages.”
Check Your Laws
In New York and Chicago, according to the respective property laws: you have the absolute the right to sublet your apartment at no additional cost. You need to follow the guidelines, but the landlord cannot “unreasonably refuse” the right to sublease.
Subletting rent stabilized apartments in New York is a little more complicated and requires more care. The tenant still enjoys the right to sublease, but he must maintain the apartment as his primary residence. For example, if you wish to sublet while you take a temporary job assignment, or you are in the military service or college, or you expect to spend four months wintering in Florida, you may still be considered a primary resident. Also beware of subletting a rent stabilized apartment, often times the lessee will rent the apartment to you for more than what they pay, and in essence they make a “profit” from you.
Sadly for Californians, the law is not nearly as friendly to them as it is in New York. In California contract law isn’t voided by state law, so it does matter what is in your lease. The practice, though, is pretty similar. Just like everywhere else you have a lot more leverage if you can find someone that your landlord can’t “unreasonably refuse.” So as a first step you should always look for a prequalified replacement.
Take note, Californians, read your lease terms before you sign!
Follow the Rules
So you might be wondering how do you receive approval to sublet from your landlord? In order to make a sublet request, you should send a letter to your landlord via certified mail, return-reciept requested, and save a copy of the document for your own records. Certified mail is the only proof of delivery that most courts will accept and thus is the best way to protect yourself. The letter should clearly outline the terms of the agreement and include the following information:
- How long the sublet will last
- The name and permanent address of the proposed subtenant
- The reason for subletting
- Your address for the term of the sublet.
- Written consent of any guarantor or co-tenant on your lease
- A copy of the sublease agreement with the original lease attached (if available)
If you don’t feel like drafting your own agreement, we’ve got you covered.
Within 10 days after mailing your request, your landlord may ask for more information regarding the prospective subtenant, which you’re obliged to provide granted it’s not too outrageous. If you go through all this and don’t get a response within 30 days, you’re actually good to go. The landlord’s silence is taken as permission as far as the law is concerned.
While state laws do vary (check out our comprehensive state specific guide to subletting legally), most laws require landlords to accept a suitable replacement you propose as a sublessee. Your interests and those of your landlords are actually pretty aligned here: often, when a property owner has a subtenant, they don’t even know the subtenant’s name. For a landlord, an unknown occupant is petrifying. By letting you sublease legally they can avoid this state of affairs and you can move on with your life without breaking the bank.