What Is a Sublease?
In most subleases, the tenant’s renter covers all or a majority of the property’s monthly rent payments. Subleasing can keep tenants from breaking their original lease while someone else pays their rent. For example, a tenant’s job forces them to move before the end of their rental agreement. Subletting their rental can keep them from violating their rental agreement and eviction. The new tenant assumes responsibility for the rent amount.
Subleases are also called sublets. A property’s original tenant is called the sublessor or sublandlord, and new tenants are sublessees or subtenants.
How Does a Sublease Work?
The written agreement defines the obligations for which the sublessee is responsible. These details include a security deposit and rent payments. Often, the sublandlord gets their landlord’s consent before subletting, either verbally or in writing. And sometimes, the landlord signs the written agreement between the sublessor and sublessee.
The contract between the sublessor and sublessee does not replace the original tenant’s rental agreement. Instead, it’s a new document outlining the sublessee’s obligations to the sublandlord.
For example, the sublessee pays a security deposit and rent to the sublessor, not the landlord. But the original tenant’s rental agreement remains in place.
As such, they owe the property owner rent, even if the sublessee fails to pay them. They’re accountable for non-payment of rent and related late fees. The subtenant is also liable for any damage to the rental unit.
What Are the Legal Implications of Subletting?
In New York City, for example, tenants in buildings with four or more units can sublet their apartments no matter what their original lease says. This rule doesn’t apply to co-ops and public housing, though.
Landlords should account for subletting in their original lease agreements with new tenants. If you don’t want to allow for subleasing and you’re not required by law to do so, make sure your contract states this.
How to Protect Yourself
Your legal rights and responsibilities as a landlord vary based on your rental property’s location. The smartest approach is to seek legal advice if you’re considering subletting your property.
The Pros and Cons of Subletting
- Your property continues generating income. If your tenant moves, your rental property might stop earning money.
- Someone’s in your property. Having a vacant unit poses a risk. By subletting, you’ll have someone in your rental property to alert you of anything needing repair. And their presence can cut-down on vandalism or theft.
- You don’t have to find a new tenant. In many subletting situations, the original tenant finds a subtenant. That relieves you from having to spend time and money getting a new renter—and if you trust your tenant, there's a decent chance their subletter will be equally good.
- You earn a good reputation. Allowing your tenants to sublet can make your renters happy with you as a landlord. That positivity can lead to them referring others to you, making it easier for you to find future tenants.
At the same time, there are some cons of subletting:
- Subtenants might be less-qualified than the original tenants. Your tenant might not be as rigorous as you when finding a sublessee. They may select someone with a worse credit rating or less income than you’d prefer.
- You may not have a contract with the sublessee. The sublessor and sublessee may sign a written agreement without you. If so, you don’t have a contract with the subtenant. That can cause you legal issues if the subtenant doesn’t pay rent or damages your property.
You could lose out on money. Your tenant could ask their sublessee more for rent than you were charging. If you’re not a party on the sublease agreement, the sublandlord isn't required to pass the full rent amount on to you. In this scenario, you’re losing income you might otherwise get from your subleased property.
What Real Estate Investors Should Know About Sublease Agreements
- Seek legal advice. You must know the laws where your property’s located. And you need to make sure your lease agreement is within the law and enforceable.
- Determine how involved you want to be. Are you OK with your tenant finding a subtenant without your involvement? If not, do you require your written permission before they proceed with a sublessee?
- Likewise, decide how you’ll screen subtenants. Do you want to review a sublessee’s credit rating before they sign an agreement with your tenant? Or, are you comfortable allowing your tenant to vet potential subtenants?
- Define rent payments. You can stipulate in your lease agreement that your tenants owe you all rent collected through a sublease agreement. This rule keeps sublessors from charging sublessees more rent than you’re charging them.
Choose if you want to allow short-term rentals. Are you alright with your tenants listing your property on a service such as Airbnb or VRBO? What about subtenants?
In most places, the choice of whether to sublease is up to landlords. As a real estate investor, you have to decide based on your risk tolerance and business model. If you choose to allow sublets, it’s crucial to define the details in your lease agreement.