Subletting is a transfer of a portion of the remaining term of your lease. Simply stated, you are subletting when you rent to a roommate whose name is not on your original lease and whose rent is paid to you or you have someone stay in your apartment during your temporary absence and pay rent to you.
Can I Sublet?
If your landlord strictly prohibits subletting, your lease must specifically say so. If your lease only prohibits assignment, then you may sublet. More commonly, however, the lease will have a clause stating that you may not sublet without the prior consent of the landlord.
Traditionally, this “approval clause” has given landlords absolute control over whether a tenant is allowed to sublet or not. A landlord’s decision could be arbitrary or unreasonable and, until recently, there was no legal basis for questioning his or her decision.
In the past few years, however, the California courts (most significantly the Supreme Court, in Kendall v. Ernest Pestana, Inc. (1985) 220 Cal Rptr. 818) have insisted that landlords have a commercially reasonable objection to a proposed subtenant before they can prohibit the sublease. While all of the cases decided in California to date have addressed commercial leases, most observers agree that residential tenants have similar rights regarding subleases. Simply stated, if you want to sublet, and the person who you want to sublet to is able to keep all of the terms of the lease, you do not have to take a landlord’s rejection of the sublet as a final answer. Instead, contact Renters’ Legal Assistance for further information.
Ending a Subtenancy
If your subtenant rents month to month and you’d like to end the arrangement, you’ll need to give the amount of notice required by your state to terminate a month-to-month tenant. Typically, this is 30 days. If your subtenant has a lease that you would prefer not to renew, send a reminder towards the end of the term that the end is approaching and that you do not intend to renew the lease or start a month-to-month relationship.
If the tenant doesn’t leave, do not accept any more rent. You’ll probably need to follow regular eviction procedures, like any other landlord.
You may also find it necessary to evict if the subtenant hasn’t paid you the rent, or has broken the house rules or a lease clause. If you live in Berkeley, Oakland, San Francisco or Los Angeles, you’ll need to follow the procedures for “just cause”.
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