What is a Sublease and When Can You Do It?

What is a Sublease and When Can You Do It?

Updated on May 9, 2019

You are going away for business for an extended time, or you just want to move out of your current property, but have a lot of time left in your lease. You don’t want to break the lease, and you don’t want to continue paying rent somewhere you are not staying. What should you do? 

Maybe you should look into “subleasing” your unit.  Generally, a tenant has the right to sublease or “assign” the lease because a tenant’s rights are considered “freely alienable” in California. Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal 4th 342.  However, most lease agreements these days have a provision regarding the “assignment” and/or “sublease” of your unit.  If your lease does not contain one of the above mentioned provisions, you are in luck – you probably have an unrestricted right to sublease or assign your interest. 

Basically, the main difference between an “Assignment” and “Sublease” is the amount of a tenant’s interest that is transferred to the sublessee. Assignees usually receive a whole interest and comes into “privity” with the landlord; i.e., direct relationship.  However, sublessees, only receive a portion of the tenant’s interest and only comes into “privity” with the tenant or sublessor. 

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It is rather rare that a 1-year apartment lease agreement will allow a full assignment. However, it is more common to sublease your unit to someone else temporarily or for the remainder of your lease.

Before making your decision to sublease your property, follow these simple steps:

  1. Review your Lease/Rental Agreement 
  2. Check any provisions regarding Subleases
  3. Talk to your Landlord
  4. Give Notice to your Landlord
  5. Obtain Consent from your Landlord
  6. (Prepare a Sublease Agreement) – Your Landlord may require the sublessee to sign a written agreement that either provides for a maximum number of tenants, specifies the tenants by name, prohibits assignment, prohibits subleasing, or requires all of these conditions.

Landlords will be more open to sublease agreements rather than assignments because they can keep the original tenants on the hook. It relieves the landlord of much more liability and creates less headaches against any potential issues.

However, before letting someone take over your lease informally, make sure you speak to a well-versed real estate attorney regarding the necessary terms of the agreement. At Schorr Law, we are experienced in handling all types of residential and commercial landlord-tenant matters, including the drafting of an assignment or sublease agreement. To schedule a consultation regarding your matter, please contact us by phone, email, or send us a message through our contact form.

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See related: Leases and Assignments – The Benefit of Express Assumption