Whether it’s for a semester abroad, a lengthy work trip, or making a check on your bucket list with a six-month trip around the world (lucky you!), paying your landlord for a dwelling you won’t be using may feel like an expensive annoyance. For some, having someone else living there sounds like a win-win situation: they get a place to stay for a few months, and you’re freed from coughing up monthly rent and possibly getting your plants watered as well. Nobody wants to come home to a dead, dusty ficus.
Like most arrangements between two people, things can go horribly awry when one person doesn’t hold up their end of the bargain. If you discover your subtenant is causing issues with the rental unit, can you remove them? If so, how? It’s not as simple as throwing their stuff onto the sidewalk and changing the locks, even if they’ve stopped paying the rent. Don’t do that (seriously, don’t).
When you enter into a sublease agreement with a subtenant (which absolutely should include a written contract!), you are essentially becoming their landlord. As such, you should be fully aware of the rules you’ll need to follow if eviction proceedings become necessary. Making mistakes during the eviction process, or attempting to bypass it entirely, can land you in trouble that could include losing your security deposit, breach of your own lease agreement, and eviction of yourself as well.
You’d probably like to avoid all of that. Let’s take a closer look at what’s involved in taking on a subtenant, how you should protect yourself, and your options if things go sideways (hopefully not while you’re hiking Frodo’s journey to Mount Doom in New Zealand).
A Sub’s a Sub (Except When It’s Not)
Let’s start by clarifying the key difference between subleasing and reletting. Depending on your rental agreement, you may be able to sublease, relet, or neither.
Under a sublease, you typically remain bound by the original lease agreement. They’re subleasing through you. If they cause damage to the dwelling, you can be liable for any repair costs. Despite not currently living there, you’re still subject to the lease terms you entered into with the landlord.
Reletting works differently. Under a relet, the new tenant signs a new lease contract with the landlord. The replacement tenant is directly responsible to the landlord for rent, damage, and compliance with that new lease. The landlord must initiate and follow through on the eviction process. Get written confirmation of release from the landlord, as some jurisdictions allow landlords to seek a rent shortfall from the original tenant in some circumstances.
Looking Before You Leap (or Lease)
There are many reasons to sublease your place during an extended absence, such as maintaining residency in an apartment with rent control or avoiding paying rent on a place you’re not in. There are plenty of concerns to consider, too.
Is it Legal?
Before signing a contract with a subtenant, it’s pretty important to make sure you can do so legally. If you didn’t do so when you first moved in, it’s time to take a good look at your lease agreement. Some landlords may not permit subleases or may require you to follow certain protocols. The terms of your rental agreement may also mandate that you inform the landlord of any subleases, which can put you at an extreme disadvantage if you’re caught with an unauthorized subletting or subleasing. If you’re thinking about living dangerously by not letting your landlord know about a subtenant, it’s advised that you have a landlord-tenant attorney explain the exact risks you’d be taking.
You’ll also need to check both state and local laws regarding the legal standing of subleasing. Many large cities have their own statutes and regulations addressing subleases, unauthorized occupants, and legal requirements for replacing roommates.
How Well Do You Know the Person You’re Letting Move In?
As we’ve established, you become the subtenant’s landlord when you bring them in as a sublease. That means you’re still responsible for the rent getting to your landlord each month, regardless of whether they pay you or not. If you have roommates/housemates, how the monthly rent is collected will depend on your lease agreement. Some collect rent individually, while others expect a lump-sum payment. If your subleasee doesn’t make their required contribution, the entire household is considered delinquent.
Even if you already know the person you’re subletting to, you should take certain steps to protect yourself. We can’t stress this enough: use a written sublease agreement that both sides sign. What’s sufficient will vary by local and state laws, as well as any conditions imposed by your landlord, but should follow a similar basic template. Clearly define the sublease terms, as this will make getting an eviction notice or an equivalent court order easier.
Before you let someone else in your place, take the time to document its condition. Take pictures of everything, including walls and floors. If you need to prove that a hole in the drywall or water damage to the floor wasn’t there before your subtenant moved in, having more than your word is essential.
Even if it’s going to a sibling or your best friend, you should also insist on a security deposit that’s at least equal to the one you gave when you signed your lease agreement. Security deposit rules can also vary by state and city, so check local rules on whether you need to include interest and where the deposit must be held, among other potential issues. If this is all starting to sound complicated, that’s because it is. Keep in mind that meeting with a landlord-tenant attorney before committing to a subleasing agreement is a sound idea.
When Gotta Go, They Gotta Go. How To Legally Evict a SubTenant
As we’ve made clear, evicting a subleasee will fall to you, the master tenant. Alas, it may not be as simple as sending an email that says, “get out.” What’s involved varies by state and local jurisdiction, but most follow a similar process.
To start, you may need just cause to legally evict a subtenant. The exact reasons you can evict (if you need any) will vary by state and city. If they’re abiding by the terms of your agreement, you may not be able to evict. In most cases, cause for a termination notice involves nonpayment of rent, damage to the dwelling, illegal activities, or some combination of the three. You’ll need to serve your tenant with a proper notice for cause that clearly defines the contract violations they’re accused of. A notice to quit orders them to vacate the premises, usually as a 30-day notice (this can vary by jurisdiction). This can also follow you giving them the opportunity to cure the issues and them failing to do so.
If they don’t quit the premises, your next step is to file an unlawful detainer action in court. If the court gives a judgment in your favor, you can get a writ or warrant of possession that allows law enforcement to remove them. You may need to make accommodations for their belongings because, as we mentioned earlier, it’s never going to be okay to toss their stuff into the street, regardless of how things end up. Note that in a sublease, you’ll still be responsible for your share of the rent being paid to the landlord during the legal process, whether that comes from the subtenant or yourself. You can attempt to recover unpaid rent through a civil action.
Going to court as a landlord, even to a subleasee, is likely to be a headache. Court fees can be expensive, and getting money out of a subtenant can be like getting the proverbial blood from a stone. A signed written contract and clear proof of your subleasee’s malfeasance are essential to your success, so make sure you cover those bases.
