A subtenant may be someone taking over the space because the tenant will no longer be there, or the two (or more) may share the same space. Subleasing is legal in California unless prohibited or limited in your lease agreement.
A sublease transfers the tenant’s right to part or the entire premises for the remaining lease term to a third party. Leases usually prohibit subleasing entirely or allow it only with the landlord’s consent.
You may spend a lot of time and effort screening tenants, but if subleasing isn’t mentioned in the lease, your tenant is free to find someone else to live there (though the tenant would be responsible for any damage or problems caused by the subtenant). If you don’t want to ban subletting but want to control it, you can have language in the lease requiring your approval of the subtenant
Subleases and Lease Assignment
Lease assignment is different. That occurs when the tenant transfers their rights to another person. A tenant won’t be relieved of liability under the lease by assigning it unless you expressly agree to it. Assignment and subletting have something in common – the tenant can do it unless it’s not allowed in a lease, or you play a role in selecting to whom the contract’s assigned.
Language in a lease not allowing assignment is not the same as prohibiting subleases. If you want to prevent the two, both must be mentioned in the lease.
Words Have Power. Choose Them Wisely
California law favors the transferability of a tenant’s rights to the property, so prohibitions against subleasing are strictly construed against you. That doesn’t mean you can’t protect yourself. A sublease prohibition in a lease, or language requiring your consent, may be considered valid. If you can, under the lease, reject a proposed subtenant, your decision must be reasonable and made in good faith.
Despite the sublease, the original tenant is liable to you for all obligations under the lease and
for acts or omissions by the subtenant. A subtenant has no direct legal obligation to you. The subtenant’s rights come through the tenant.
You have no right to enforce the lease directly against a subtenant, but the landlord can enforce it against the tenant. If you terminate the lease for default, the subtenant’s and the tenant’s right to stay ends.
The moral of the story is that lease language matters, especially regarding a tenant’s ability to sublease. Most landlords either don’t want subleasing to take place or to exercise control over who’s occupying the space. If that’s how you want your property handled, you must protect yourself with appropriate contract language.
We’re Here to Help
If you’re a residential landlord and have questions about drafting lease language or you have a subleasing issue with a tenant, call Anthony Burton at (949) 244-4207 or complete our online contact form today.
