Sublease of residential lease (with landlord consent): How-to guide

From time to time, tenants may want to leave a rental property before the end of their lease. People may take new jobs in new cities, and companies may go out of business or sell their assets to a third party. Whatever the reason, tenants can transfer their lease interests to new parties by writing and signing a sublease.

A sublease is the transfer of part of one party’s lease rights and obligations to a third party. From then on, the new tenant is responsible for the original tenant’s lease obligations, including rent and property maintenance. However, the original tenant will still be ultimately liable for most (if not all) of its duties.

Successful property management begins with good documentation. A properly drafted and executed sublease will ensure that all parties, new and old, understand the obligations and responsibilities being transferred. This lays the foundation for a great (and long-lasting) landlord/new tenant relationship.

Tips to create a sublease agreement with the landlord’s consent

Responsibilities of old tenants

A sublease agreement gives a third party or subtenant only the specific rights provided in the sublease. The original tenant remains ultimately liable for any remaining lease obligations or any failure of the subtenant to meet their obligations. This means the original tenant will be responsible (to the same degree as the new tenant) for any missed rent payments or property damage.

Understand what an assignment of lease is

A sublease arrangement is different from an assignment. An assignment is the complete transfer of one party’s interest in an agreement to a third party. If it is a lease assignment, the original tenant gives all their interest or rights to a new tenant. The new tenant is said to “step into the shoes” of the old tenant, and the old tenant is released from most of their obligations under the lease.

Obligations of the subtenant

It is important that the new tenant receives a copy of the original lease agreement. They need to comply with its terms and should know what their new obligations and rights are.

Basic rights of the new tenant towards subleased premises

The original tenant can’t give more rights than it has under the original lease. For example, if the term of the lease agreement is one year, the term of the sublease can’t be two years.

Need for landlord’s approval for leased premises

Most lease agreements require the landlord’s written consent to sublease. The sublease agreement becomes effective only when you have the landlord’s permission. Review your original lease agreement for additional information and see if additional terms and conditions make the transfer valid.

A landlord cannot “unreasonably” withhold consent to sublease, which is more common in commercial leases. What is considered unreasonable varies from jurisdiction to jurisdiction, and you should review the laws in your area (and the language in your original lease agreement) for additional information.

On the other hand, if the lease states that the landlord may use their “sole discretion” to evaluate the new tenant, they can veto a sublease for any reason.

Depending on your jurisdiction or the terms of your original lease, a landlord’s failure to respond to your request for consent to sublease within a certain time may itself be deemed consent. In some cases, it gives a tenant grounds to terminate the lease.

Factors for landlord consent to sublease

A landlord may consider only proper factors when deciding whether or not to consent to a sublet. Courts will consider some criteria impermissible (e.g., refusal is based on the new tenant’s race or sex). If your landlord does not consent to sublease, ensure they give you clear written reasons for the decision. Failure to provide these reasons can itself be deemed unreasonable.

Signing requirements of a sublease form

In a sublease agreement, the parties involved agree to sign three copies: one for the subtenant, one for the original tenant, and one for the landlord. 

Depending on the nature of its terms, you may decide to have the document witnessed or notarized.

State laws governing real estate, renting, leasing, and subleases vary widely and can have a tremendous effect on your arrangement. In some cases, specific information must be included in the sublease. In others, certain languages must be excluded from your agreement. Review your state and local laws for additional information about what is required in your area.

If your agreement is complicated, contact an attorney to help you draft a document that will meet your specific needs.

Key elements of a sublease of residential lease with landlord consent

The following instructions will help you understand the terms of your sublease.

Introduction

Start the agreement by identifying the parties and, if applicable, what type of organization(s) they are. In the agreement, the person who owns the property is called the “landlord.” The current tenant is called the “sublessor,” because they’re the people subletting the property. The new tenant is called the “sublessee.”

You should also provide the date on which the sublease will become effective (often the date on which it is signed).

Recitals

The “whereas” clauses in the agreement define the world of the sublease agreement and offer key background information about the parties. The recitals include a simple statement of the parties’ intent to transfer the sublessor’s interest in the lease and the sublessee’s intent to assume it. Provide a brief description of the property being rented and the landlord's name under the lease. You must also provide a copy of the original lease along with the agreement.

When describing subleased premises, you need to provide enough details so they can be clearly identified. For individual houses, the property address will usually be sufficient. If the property has a specific name (e.g., “Lincoln Towers”), include that as well. If only a section of the premises is being subleased, make that clear in this description.

Sublease

This section essentially confirms the parties’ agreement that the sublessor will sublease its rights and interests in the lease to the sublessee. This paragraph allows you to determine whether all of the sublessor’s interest in the lease is being subleased or only part of it. For example, if the original tenant is interested in only half of the premises, this should also be mentioned.

Assumption of rights and duties 

This section explains that the sublessor is no longer primarily responsible for the duties listed under the actual lease (e.g., rent, maintenance of property, etc.). Regarding the continuing liability of the sublessor, the following provisions can be opted for:

• At first, the sublessor is completely released from any liability it had under the lease. If the sublessee defaults, for example, the landlord cannot seek payment from the sublessor.
• Another option is where the sublessor will be liable to the landlord if the sublessee defaults.

Note that, in any event, the sublessor will remain responsible for any obligations that occurred before the sublease became effective. In other words, if the damage happened to the apartment before the transfer or if the sublessor did not fulfill another obligation under the lease, they remain responsible for that damage.

Term

Here, you have to provide the time period for which the sublease will last. This can’t be longer than the remaining time left on the actual lease.

Termination of lease 

This section explains what will happen to the sublease if the lease is terminated before the end of the term. The sublease is based on the main lease. If the lease terminates, the sublease will also terminate.

Security deposit

Generally, in a rental arrangement, an advance amount is paid or deposited as security to the landlord. At the end of the lease, this money (with deductions subtracted or interest added) is returned to the tenant. In a sublease relationship, the sublessor might still be responsible for any damages caused by the sublessee. In such cases, the landlord will be allowed to deduct the amount of this damage from the sublessor’s security deposit.

Indemnification

In this part, the sublessee promises to bear the financial cost of any injury the sublessor suffers because of the sublease or any lawsuits arising from the sublessee’s activities on the premises.

Continuing effectiveness of the lease

This section emphasizes that, except for the sublease, the original terms of the lease are still effective.

Sublessor’s representations and warranties

This clause lists the sublessor’s promises under the sublease. For example, the sublessor provides assurance that the prime lease and the rental interest it provides are useful (i.e., that no one else lives or has an interest in the place, that the lease is still in effect, and that the sublessor hasn’t defaulted in rental payments, etc.).

Sublessee’s interest in the property

If there are other tenants in addition to the sublessee, include their details in this provision. This section also allows you to add information regarding what access the sublessee will have to the common areas of a property.

Condition of premises 

It states that the landlord or the original tenant doesn’t promise the premises to be perfect or useful in a particular way. Rather, the sublessee is taking the rented property for what it is and is accepting it in that state.

Parental/guardian guarantee

If the sublessee is under the age of 18, they can’t legally enter a contract, and the sublessor and landlord may not have assurance that the lease obligations will be met. This section requires the signature of a minor sublessee’s parent or guardian and the promise of that person that if the sublessee doesn’t meet its obligations, the parent or guardian will be responsible for those.

Additional terms of sublease

This provision allows the sublessor and the sublessee to include any representations, warranties, or other provisions particular to their situation.

Interpretation

This section states that the parties are on equal footing in negotiating the sublease. In many cases, contracts are interpreted in favor of the individual who did not draft them. This clause makes clear that both the tenant and the landlord were involved in the drafting, and so the document should not be read in favor of (or against) either.

Notice

It lists the addresses to which all official or legal correspondence should be delivered. Write a mailing address for both the sublessor and the sublessee.

Modification

It states that any changes to the document are only effective if they are made in writing and signed by the parties involved.

Governing law

It allows the parties to choose the state laws that will be used to interpret the document. The governing law will almost always be that of the place where the apartment or rental building is located.

Counterparts; electronic signatures

According to this provision, all three parties to the agreement can sign the sublease form using electronic signatures.

Entire agreement

Here the parties agree that the document they’re signing (together with the original lease) is “the agreement” they are voluntarily signing according to the discussed terms and conditions.

Frequently asked questions

What's a landlord consent to sublease of residential lease?

From a dream job in another city to a relationship ending to the need for a new roommate, sometimes, it's time to move on from (or make changes) to a lease before it's up. If you want to transfer some of your residential lease responsibilities to a new tenant, a sublease with the landlord’s permission helps protect both parties.

What key details are required to complete your landlord's consent to sublease agreement?

The information you'll need to have to complete your landlord consent to the sublease of the residential lease are:

• Who the original tenant is: Keep the name and contact information of the original tenant ready
• Who the new tenant is: Have the new tenant’s information handy
• Roommates and access: Know if anyone else lives in the rented space and what spaces the new tenant has access to