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A residential lease is an agreement in which the owner of real estate allows a tenant to live in the property in exchange for the payment of rent. A residential sublease is an agreement in which a tenant agrees to allow a subtenant to live in the property in exchange for rental payments. Your legal rights will be affected if you sublease property you rent.
Subleases Are Different from Assignments
If you are renting property and you re-rent it to a subtenant for the remaining duration of the lease, you have assigned the property rather than subleased it. If you re-rent to a subtenant for less than the entire remaining duration of the lease, meaning that you will move back in before the end of the lease, you have subleased the property.
The most important difference between the two is that if you assigned the property and your subtenant doesn’t pay the rent, the landlord can sue either one of you for it. If you sublease the property and your subtenant doesn’t pay the rent, your landlord can sue you for it, but not your subtenant.
Permission to Sublease
Before subleasing, check your lease agreement. If it says you can’t sublease, then you can’t. If it says you can, then you can. But if your lease is silent on the matter, whether or not you can sublease the rental property depends on state law.
Some states allow you to sublease unless the lease specifically says that you can’t. Other states don’t allow you to sublease unless the lease says you can. Even if your lease forbids subleasing, you can still do it if your landlord provides you with special written permission.
Both You and Your Subtenant Face Liability
Under a sublease, you are not released from any of your duties under the main lease. If your subtenant fails to properly maintain the property, for example, your landlord can deduct the cost of repairs from your security deposit. Liability also runs the other way. If you fail to pay the rent on the main lease, for example, your landlord can cancel the lease and force your subtenant to move out, even if your subtenant has never missed a rent payment.