Subleasing might be a good option if you need to move before your lease is up, but it comes with legal responsibilities you can’t hand off to your subtenant.
Subleasing allows you, the current tenant, to lease the property to another person, rather than having the subtenant lease directly with the landlord. But as the original tenant, this involves some risk. Certain legal problems commonly occur in subleasing situations, and these issues can be the difference between a smart way to stop paying rent on a place you’re not living in and facing significant legal and financial repercussions.
Subleasing vs. Subletting
Before we get into potential legal issues, let’s clarify the difference between subleasing and subletting. You might hear these two terms used interchangeably, but they are not the same.
- If you sublease your rental, you remain the primary tenant. You are responsible for the terms and lease. The sublessor has an indirect relationship with the landlord or property owner through you.
- If you sublet (also called relet) your rental, the new tenant takes over the lease and is responsible for its terms. They sign a new contract and have a direct relationship with the landlord or property owner.
Now, keep reading to learn about common legal issues you may run into if you decide to sublease.
Subleasing Isn’t Legal Everywhere
Before you even consider subleasing, check whether it's legal in your city or state. Some states don't allow subleases under certain conditions.
For example, New York has detailed sublease rules, especially for larger apartment complexes. In New York, tenants in buildings with four or more units may request a sublease in writing. The property owner can only deny based on reasonable grounds, such as poor credit or safety concerns. But tenants in smaller buildings, rent-controlled units, or some subsidized housing may not have the same rights.
Your Lease May Not Allow It
Besides complying with the law, another legal problem when subleasing is whether your rental agreement allows it. Some rental agreements include a clause that limits the renter's ability to sublease or allow guests to stay for extended periods without the landlord's approval. So review your agreement or talk to your landlord before you sublease, or you could breach your lease.
Keep in mind that in the eyes of the law, subleasing your place isn’t the same thing as Airbnb’ing it. It varies by state, but the legal differences come down to the duration of the stay, the occupant's legal rights, and the nature of the transaction. Short-term rentals like Airbnb and Vrbo are classified as commercial business use rather than residential use and are prohibited in most lease terms.
Either way, if you sublease or use your apartment as a short-term rental without your landlord’s permission, you can face eviction or further legal action.
You’re Still Technically the Tenant
Even if you sublease your place, you remain the tenant to your property manager. Even though you act as a sublandlord to your subtenant, you’re the one who’s ultimately on the hook for rent payments and property damage.
Even though the subtenant is responsible for paying rent and complying with the lease rules, the original tenant is who ultimately answers to the terms of the lease.
If your subtenant doesn’t pay the rent or damages the rental property beyond normal wear and tear, you’re liable. The landlord can demand payment for unpaid rent, charge you for repairs, or even sue you for breach of lease — even if the sublessee caused the problem.
Security Deposit Issues
Because your landlord still treats you as the tenant, security deposits can get murky in subleasing situations. Your landlord can withhold all or some of your original deposit for cleaning fees or damage caused by the subtenant. This can leave you chasing the subtenant for reimbursement.
Because of this, it’s wise to ask the subtenant to pay you a security deposit to cover any damage or unpaid rent. You can include this in the sublease agreement. Also, document your unit’s condition before your subtenant moves in with thorough notes and photos. Without this, it’s difficult to prove what damage was there before and what they may have caused.
You Didn’t Have a Lawyer Review the Sublease Agreement
The best way to avoid potential issues with a sublessor is to get legal advice from an attorney before you enter into an agreement.
A landlord-tenant attorney can spot issues you might miss, like illegal clauses or missing protections. They can ensure your contract clearly outlines rent payments, maintenance responsibilities, and what happens if the subtenant violates the lease agreement. They can also add provisions that protect your security deposit. Further, they’ll advise on how to reduce your liability, such as running background checks and verifying income.
Without legal guidance, it’s easier to end up with a sublease that looks fine on paper but leaves you exposed when something goes wrong. It only takes one bad subtenant to tarnish your rental history or stick you with expenses you never saw coming.
Related Resources:
- 5 Smart Legal Moves Before You Sign a Lease (FindLaw’s Law and Daily Life)
- How Real Estate Attorneys Can Support Landlords (FindLaw's Learn About the Law)
- Eviction Notices and the Eviction Process (FindLaw’s Learn About the Law)
