Subletting is one way of moving out of an apartment before the end of your tenancy. Unlike assignment, which permanently transfers your lease to another person, subletting allows someone else to live in your apartment temporarily, until you wish to move back in. Typically, leases prohibit subletting without the consent of your landlord.
Your lease determines whether or not you can sublet. If your lease says nothing about subletting, you can freely sublet without consulting your landlord. You don't even have to tell the landlord the identity of your subtenant. If your lease prohibits subletting, then you cannot sublet. If your lease allows you to sublet with landlord's consent, you are violating the terms of your lease if you sublet without obtaining that consent. On the face of it, this is straightforward. However, state law might intervene to override the express provisions of the lease.
If your lease forbids subletting, check whether state law intervenes to give you the right to sublet, regardless of the express terms of your lease. Some jurisdictions, such as New York City, have specific regulations which override your lease agreement. Typically these regulations obligate landlords to approve subleases, where it is reasonable to do so. There may be restrictions on the period of subletting, and you may have to follow an application procedure prescribed by statute. If your landlord fails to respond to your application, some states deem that he has given consent.
If your lease prohibits subletting without landlord's consent, your landlord does not have to give his consent. He does not have to act reasonably, or provide any reason for refusing your application. There are two exceptions to this. The first is a clause in the lease which requires the landlord to act reasonably. Typical wording is that the landlord "may not unreasonably withhold consent." The second is if state law intervenes to impose a reasonableness obligation. The test of reasonableness is substantially the same, regardless of whether it is imposed contractually or statutorily. Put simply, the landlord should consent if the sublease does not put him in a worse position than he is in at present. So, if the subtenant is reputable, of good character, and able to pay the rent and observe the terms of the lease, the landlord should give his consent to the sublease.
Subletting without Consent
If you sublet without first obtaining your landlord's consent, and that consent is required by the lease agreement or state rental laws, you violate the terms of your lease. While this does not bring your lease to an end, it gives the landlord certain remedies. This includes a right to evict you and terminate the lease.
Jayne Thompson earned an LLB in Law and Business Administration from the University of Birmingham and an LLM in International Law from the University of East London. She practiced in various “big law” firms before launching a career as a commercial writer. Her work has appeared on numerous financial blogs including Wealth Soup and Synchrony. Find her at www.whiterosecopywriting.com.