A sublease is NOT a release from the lease. The primary responsibility shifts from original tenant to subtenant; however, if the subtenant fails to pay rent or does damage to the property, the original tenant can be held liable to the landlord for the cost of the subtenant's default or damage.
If you are the subtenant who takes over the responsibilities of the original tenant, you might be held liable for the original tenant's damage or non-payment of rent, depending on the language of your sublease contract. Especially in the summer, the Tenant Union hears from many subtenants who face eviction because the original tenants failed to pay their share of the summer rent. Read the section below on "summer sublet."
Most leases state that you cannot sublet without the landlord's written consent. Make sure that the landlord either signs the sublease agreement, or signs a statement that says the original tenant has permission to sublet. Both the original tenant and subtenant should have a copy of that statement.
Your landlord should not withhold consent unreasonably. For example, your landlord should not reject a subtenant because of that person's race, nationality, disability, the fact that s/he is a student, has children or receives public aid, or for any reason that is not a lawful reason for rejecting a tenant (see Discrimination ). Contact the Tenant Union if your landlord is unfairly preventing you from subletting.
Tips for funding a subtenant are in the Next Section of this Handbook.
You should always sign a written sublease agreement. If the new tenant just moves in, many problems can result. The landlord might claim the new tenant is really a trespasser because no contract exists. Or, the new tenant may move out after a month, claiming no contract exists. Subletting is as important as signing the original lease -- BE SURE YOUR AGREEMENT IS CLEARLY STATED IN WRITING.
It's also not a good idea to simply add the new tenant's name to your lease. It may appear that you are roommates, jointly liable for rent and utilities for the full lease term. There may be confusion about when the sublease starts and ends.
What do you plan to do about the deposit? Will the subtenant pay a deposit? Will payment be made to the landlord or to the original tenant? Will the landlord hold two deposits until the lease ends? These issues should be addressed in your sublease contract to avoid problems.
Also be sure to state clearly in the sublease agreement whether the agreement is to sublease the entire apartment or to sublease one bedroom and shared use of common areas of the apartment to one person.
Once you sublet your apartment to someone else, you will still be responsible to the landlord for all of the terms of your lease, in the event that your subtenant fails to pay rent or damages something. It's a good idea to check with the landlord to make sure your subtenant is paying the rent.
If you will be subletting for summer only at a rate that is very low, you'd be wise to require the subtenant to pay all rent before moving in.
If your subtenant does not pay rent, the landlord can sue her/him or the landlord can sue you. Often, the landlord will sue you both.
You can always sue the subtenant, but if s/he's gone and cannot be found, you'll have to pay. Even if the subtenant is in town, the landlord might sue you and leave it up to you to pursue your subtenant for the loss. You also risk suing the subtenant, winning a judgment, but being unable to collect. When you sublet, you will potentially be in a position similar to a landlord who cannot collect rent from his/her tenant.
It's wise to conduct a joint inspection with the subtenants at the start and end of the sublease period. It's always in your interest to have photographs that prove the exact condition of the apartment on the last day of the lease or sublease period. Scroll down to "Protecting the Deposit" for more details.
Be sure to terminate all utility service in your name effective on the start date of the sublease period.
If you will be the subtenant, you need to consider preventing problems that affect you. Your best interest is served if you:
 | Get a copy of the original lease and read it before you sign anything or pay any money. You are not just subletting an apartment. You are subletting the lease and will be bound to all of its terms. |
| Do not sublet without the landlord's written consent. This is prohibited by the lease. Either have the landlord sign the sublease contract, or obtain a written statement from the landlord granting permission for the sublet. |
| Sign a written sublease agreement. It should state: the start date and end date of the sublease, the amount you will pay and when it is due, to whom you will pay the rent and deposit, and all terms and agreements that are different from the terms of the original lease. |
| State clearly whether you are subletting the entire apartment or just one bedroom of the apartment and shared use of common areas. |
| Pay rent to the landlord and not to the original tenant. If the original tenant takes your money and doesn't pay the landlord, you'll face eviction. |
| Arrange for all utility service to be started in your name on the start date of the sublease. |
| You and the original tenant should conduct a joint inspection of the condition of the apartment on the start date of the sublease, photographing any damage. If a joint inspection is not possible, conduct your own inspection, get the inspection form notarized at the Tenant Union and send copies of the report to the landlord and original tenant. Even if you have paid no deposit, you will still be liable for damage done during the sublease. You cannot prove you did not do damage if you cannot prove move-in and move-out condition. Take photographs at the end of the sublease period , in the presence of a witness, to prove the exact condition of walls, floors, furniture, tub, toilet, sinks, cabinets, stove, refrigerator, etc. on the last day of your lease. Anyone 18 years of age or older who is not a member of your family or your household can be your witness. |
| Pay any deposit directly to the landlord, not to the original tenant. The original tenant is leaving and may never refund your money. Also, laws regulating deposit refund apply to landlords but will not apply to a tenant refunding a subtenant's deposit. |
The amount refunded to you will be reduced by the amount of charges owed by the original tenant before refund is made to you.
For example, two students subletting, pay an $800 deposit to current tenants expecting to get an $800 refund from the landlord at the end of the sublease. But, the original tenants owe $200 of unpaid rent and $60 of late fees. The lease also provides for a $25 sublet fee. In addition, the lease provides for an automatic deduction from the deposit for sewer taxes and carpet cleaning.
The landlord will deduct from the original tenant's $800 deposit, the $260 owed for rent and late fees, deduct the $25 sublet fee, and deduct $130 for sewer taxes and $120 for carpet cleaning. That means that even if you do no damage, the original tenants will be entitled to a refund of only $265. Hence, the landlord will refund to you only $265.
On top of that, if any damage was their fault -- burned carpet or tape marks on walls -- those charges will also be deducted from their deposit. Even if you can prove it was their damage, you'll still end up paying for it because you agreed to get back their damage deposit.
If you sublet a place for the summer only, you'll probably pay a reduced rent. A common problem for summer subtenants is that the original tenants fail to pay the landlord their share of the rent. Often, the original tenants' share of rent is twice the amount of the summer subtenants' share.
As a summer subtenant, YOU MAY FACE EVICTION, even if the sublease contract states how much you pay and how much the original tenants pay. The only ways to protect yourself against eviction for the original tenant's non-payment of rent are:
If you are the original tenant in a summer sublet situation, and you are giving the subtenants a great deal on the rent, it would be wise to require the subtenants pay their share of the rent before moving in.
It's also a good idea to require payment of a damage deposit, even if it's a nominal amount, to cover the cost of cleaning or damage that might be done over the summer. It's also a good idea to make every effort to be present at the end of the sublease period to photograph the condition of the unit.
Whenever possible, it's a good idea for the original tenant and the subtenant to conduct a joint, written inspection at the beginning and end of the sublease period, recording, in writing, any damage. If a joint inspection is not possible:
| Original tenant should take photographs before moving out and should try to return at the end of the sublease period to take photographs again. Have a witness watch you take the photographs. Anyone 18 years of age or older who is not a member of your family or your household can be your witness. |
| The subtenant should always conduct a move-in inspection, get it notarized at the Tenant Union, and take photographs if necessary. Keep a copy of the report and send copies to the landlord and to the original tenant. The subtenant should be sure to take photographs at the end of the sublease period. |
The best arrangement for both parties is for the subtenant to pay the deposit directly to the landlord who is responsible, under the terms of the sublease contract, for refunding the subtenant's deposit. The original tenant is best protected if the sublease agreement says that the landlord will charge the subtenant first for any damage found at the end of the lease that was not reported on the joint inspection conducted at the beginning of the sublease period.
The last person out of an apartment--whether original tenant or subtenant, should take photographs to show that the insides of all appliances and fixtures are clean and that walls and floors are not damaged. Without photographs, both original tenant and subtenant are vulnerable to being charged bogus cleaning, painting or repair charges.
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The Tenant Union does not provide legal services of any kind. All information provided in this publication is intended to help the average person prevent problems and deal with common concerns of renting. When legal help is needed, always consult with an attorney at law.
This page was last updated on 3/30/09.
