When a landlord rents to a tenant, they create an agreement known as a lease, which includes all landlord-tenant rights and obligations. If the tenant then decides to rent to another party, that agreement is a sublease, and the new tenant is a sublessee. Sublessees usually get their rights from the sublease, not the original lease. Parties should ask an attorney about specific sublease questions.
Subleases are separate lease agreements made between tenants and third parties. The tenant grants part of his own lease to the sublessee but remains responsible to the landlord for all of his duties and obligations under the lease. The original tenant keeps an interest in the lease known as a reversion. For example, if Tom has a 10-year lease, but sublets to Vincent for six of the first nine years, Vincent is a sublessee because Tom has not transferred the entire remainder of the lease.
Assignment vs. Sublease
When a tenant transfers the entire remainder of his lease to a new tenant, keeping no interest in the lease that will revert to him, the transfer is an assignment, not a sublease. The distinction is significant because assignees typically get to enforce all of the rights accorded to the original tenant in the original landlord-tenant lease (and remain obligated to the landlord in the same fashion as the original tenant).
In contrast to assignees, sublessees do not have the right to enforce any of the landlord's promises to the tenant in the original lease. The sublease agreement becomes the controlling legal instrument that spells out obligations and rights. While the landlord remains liable under the lease for his obligations to the original tenant, the sublease typically cuts off most of the landlord's liabliity to the sublessee.
Parties can agree to keep the terms of the original lease in effect during a sublease. In this manner, the sublessee can assume rights and obligations of original tenants. Parties typically accomplish assumption either by referring to the original lease in the sublease document or by writing a new assumption agreement. But assumption differs from assignment; while assumption grants the sublessee new rights and obligations, it doesn't relieve the original tenant of his rights and obligations under the lease.
Regardless of any promises or obligations in a lease, many jurisdictions have laws that force residential landlords to keep premises in a habitable condition. Most states call these laws "implied warranties of habitability." State definitions of "habitable" may vary, but whatever the standard, a landlord cannot make a contract to escape a tenant's rights to habitable premises. Most states with implied warranties of habitability also have laws that grant the same rights to sublessees.
- “Property (6th Edition)”; James E. Krier, Michael H. Schill, Gregory S. Alexander, Jesse Dukeminier; 2006
- Laywers: Subleasing and Assignment of Leases
- "Black's Law Dictionary (Seventh Edition)"; Bryan Garner (Editor); 1999
Erika Johansen is a lifelong writer with a Master of Fine Arts from the Iowa Writers' Workshop and editorial experience in scholastic publication. She has written articles for various websites.