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Whose Apartment Is it, Anyways?


For landlords and tenants, it's as predictable as the first pitch of baseball season: With the advent of summer, many people are eager to get out of town and, while they're gone, sublet their apartments.

Along with the living quarters, the new occupant--perhaps unwittingly--acquires a new legal status as a subtenant. Legally, a subtenant is someone who rents all or part of the property from a tenant and does not sign the rental agreement or lease with the landlord.

This arrangement means potential trouble for all sides. The landlord, who may not have the chance to approve the subtenants, may have trouble getting the new occupants to pay rent or pay for damage to the unit. The new occupants may lack a tenant's legal protections from eviction, depending on how long they live in the rental unit, pay rent and otherwise act like tenants.

A subtenant starts with no legal rights or responsibilities to the landlord. The tenant who entered into a lease or rental agreement with the landlord is still completely liable for the rent, if the subtenant doesn't pay. And because of entering into a contract with the landlord promising to do so, the tenant is also required to pay for any damage to the premises that occur while the subtenant lives there.

But most of these potential problems can be cured by writing and signing paperwork that makes everyone's rights unquestionably clear. Leases and rental agreements typically require tenants to get the landlord's written consent in advance for subletting or bringing in additional occupants. If a tenant simply moves a roommate in or sublets on the sly when a lease or rental agreement prohibits it, the landlord can evict the tenant.

A subtenant may either rent an entire dwelling from a tenant who moves out temporarily, or rent one or more rooms from the tenant, who continues to live in the unit.

If the tenant intends to return, the subtenant's obligations to the tenant depend on their agreement. Usually, a subtenant just agrees to pay a certain amount of rent for a certain time, but has no other legal responsibilities.

Landlords, tenants and prospective subtenants can all protect themselves if the landlord and subtenant sign a separate rental agreement. The landlord gets a chance to screen the subtenant, as other tenants are screened. Signing an agreement gives the new person all the rights and responsibilities of a tenant, including the security against being evicted if the original tenant wants to return early. The tenant is off the hook for the rent and for any damage the subtenant causes.

When the original tenant returns and the subtenant leaves, the landlord and the original tenant should again sign a rental agreement.

A tenant with a lease of six months or more may want or need to move out before it expires. To avoid paying rent on an empty apartment, the tenant may want to find a new tenant to take over the lease.

The lease gives the tenant certain rights. The most important, obviously, is to live on the premises. If the tenant gives or sells these rights to someone else, it's called an assignment, because the tenant has legally assigned this right--along with all legal liabilities--to another person.

For example, a tenant who signs a year lease may leave after six months and assign the rest of the term to a new tenant. The new occupant, or assignee, is responsible to the landlord for everything the original tenant was liable for--even without an agreement between that person and the landlord. Someone who sublets, on the other hand, is responsible only to the original tenant, not the landlord.

Lease and rental agreements often forbid assignments without the owner's consent. A landlord who unreasonably withholds consent for a tenant to assign rights--for example, by refusing to accept a financially responsible person as the assignee--may, however, lose the right to get the rest of the rent due under the lease.

A landlord must limit the personal loss by renting to a suitable new tenant as soon as possible--a concept known as mitigation of damages. Also, a landlord who turns down an acceptable prospect found by the tenant won't be able to sue the original tenants for not paying the rent for the rest of the lease term.

Most subletting problems can be avoided when the tenant and landlord sign a clear lease or rental agreement. Typically, the landlord will want clauses that:

* limit the number of people who can live in the rental property.

* allow only the people whose names appear on the lease or rental agreement, along with their minor children, to live in the property.

* require the landlord's written consent in advance for any sublet, assignment of the lease or rental agreement, or for any additional people to move in.

* restrict a tenant's rights to have overnight guests to a certain number of days per year.

A tenant will prefer a lease or rental agreement that does not prohibit assignment or sublease without the landlord's consent. While this may not be possible, tenants should realize they may be able to negotiate overly restrictive terms--for example, limits on occupants and guests--before signing a lease.

Stewart and Randolph are the editors of "Landlord's Law Book: Rights and Responsibilities" and "Tenants' Rights" (Nolo Press), from which this article is adapted. The book s will be available in August in bookstores or by calling Nolo Press at (800) 640-6656.

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