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Legal Q & A – by Franco Simone, Esq.

Posted on 01. May, 2013 by in all, Magazine Articles

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Q:  What is the different between an assignment of a lease or rental agreement and subletting?

If a tenant assigns his right to rent a unit he is transferring all his rights to the new tenant.  If a tenant decides to sublet his right to rent, he is basically agreeing to let someone else rent the unit for a specified period, after which time he may return to rent the unit.  An assignment is common in a situation where a renter has to move and has no intention of returning to the rental unit.  A sublet is common where the renter has to move for a specified period but wishes to return to the rental unit at the end of that period.

 Q:  My tenant is a college student who wishes to study outside the country.  He would like to sublet his room for three months to a friend while he is gone.  Am I obligated to allow him to sublet the room to his friend that I do not know and have not screened? 

Unless there is a lease or rental agreement provision to the contrary, the tenant has the right to sublet the unit or assign his interest in the unit.  Thus, to answer this question you must first look at your rental agreement or lease with the tenant. 

If your agreement states that any assignment or sublet must first be approved by the landlord, then the tenant cannot allow the friend to move in and sublet without your permission and approval.  However, your refusal to consent to the sublet must be reasonable.  For example, a reasonable objection to the sublet could be that the friend refuses to fill out a rental application and permit you to check his credit, or that he has a large dog and you do not permit pets in the rental unit.

If your agreement is silent as to assignment or subletting you will likely have to allow the tenant to sublet or assign his interest.

 Q:  What can I do if the tenant sublets the rental unit without my consent and the subtenant moves in? 

If you have a rental agreement or lease that prevents assignment or sublet without your prior approval then you can serve the tenant and the subtenant with a three (3) day notice to perform a covenant of the rental agreement or quit.  If the tenant and the subtenant then fail to comply, you can start an unlawful detainer against both of them. 

However, if you (1) fail to object at the time the sublet occurs, (2) demand rent from the subtenant, (3) accept rent from the subtenant, or (4) permit the subtenant to move into the rental unit without objection, you may have waived your right to claim that the tenant and the subtenant are in breach of your agreement.

 Q: My rental agreement does not have a clause prohibiting assignment or subletting, can I add one after the agreement is signed?

Yes, you can amend your rental agreement by serving a notice of change in terms of tenancy.  With the notice you can state that you changing the terms to add a new clause prohibiting assignment or sublet without your prior approval.  The change cannot go into effect until 30 days after you serve the notice on the tenant.  If you mail the notice you should add five (5) days to give the tenant time to receive the notice in the mail before the 30 day period starts.

If you have a fixed term lease you cannot add a clause prohibiting assignment or subletting.  You will have to wait until the end of the lease term to add the clause to a new lease agreement or rental agreement with the tenant.  

 Q:  I permitted my tenant to assign the remaining six months of his lease to a new tenant.  The new tenant isn’t paying rent.  Can I go after the old tenant for the unpaid rent?

In most situations you can still go after the old tenant to collect the unpaid rent for the remaining term of the lease unless you agreed to relieve the old tenant of any liability he may have under the remaining lease term.  This is true even if you have already accepted rent from the new tenant.  If you do collect rent from the old tenant when the new tenant is in possession the old tenant can always go after the new tenant to collect the rent he paid to you on behalf of the new tenant.

 Q:  What if I permit the tenant to sublet and the subtenant does not pay rent during the sublet period?

The original tenant remains responsible for the rent even after you’ve collected rent from the subtenant.  The original tenant may even be liable for any damages to the rental unit committed by the subtenant.  If the subtenant does not pay rent and the old tenant will not pay the rent you can start an unlawful detainer against both of them to recover the unpaid rent.

Attorney Franco Simone, of the Landlords Legal Center and has been doing evictions for 18 years.  He is also an adjunct law professor at the University of San Diego.  Mr. Simone’s office is open Monday- Friday from 8:00 AM to 4:00 PM.  Walk-in’s welcome -no appointment necessary.  Tel: 619-235-6180, website: www.landlordslegalcenter.com or email info@landlordslegalcenter.com.