Subletting versus assignment, and who is still on the hook

Two different transactions with one word for both

A sublease and an assignment both put a different person in the property, and in speech both get called subletting. The lease does not treat them as one thing, and neither does a court.

The difference is what the original tenant keeps. In a sublease the tenant transfers less than the whole remaining term, so a reversion comes back at the end: the head lease survives and a second tenancy sits underneath it. In an assignment everything left is transferred, no reversion is kept, and the assignee takes the tenancy in their place.

Because a sublease leaves the head lease intact, the landlord's contract is still with the original tenant and nobody else. The landlord cannot pursue the subtenant for the rent; the subtenant cannot pursue the landlord over the boiler. Everything runs through the person in the middle.

In a sublet, you are the landlord now

This is the part tenants underestimate. Subletting adds a second job to the one you already had, and a sublease needs the same content as any other rental agreement, because that is what it is.

• Rent. You owe the landlord the full rent on the due date whether or not your subtenant paid you. Their default is your loss, not a defence.
• The deposit. Money you take from a subtenant is a security deposit, and your state's cap, holding rules, return deadline and late penalty apply to you exactly as they apply to any landlord — see what a landlord can deduct.
• Repairs and habitability. If the landlord will not fix the heating, that remains your problem to solve with your subtenant, not a defence to their complaint.
• Getting them out. A subtenant who overstays is removed by you, starting with an eviction notice and running through the ordinary eviction process, at your cost.

What the consent clause is actually doing

Nearly every residential lease restricts transfer, and the restrictions come in four strengths. Working out which one you have takes two minutes and determines everything that follows.

Silence is not always permission, because statute sometimes fills it. Texas is the clearest example: section 91.005 of the Property Code provides that during the term of a lease the tenant may not rent the leasehold to any other person without the landlord's prior consent, whatever the lease says. Elsewhere a silent lease generally leaves the common-law position intact, under which a tenant may transfer.

New York runs the other way and gives tenants a statutory right. Under Real Property Law § 226-b, a tenant in a building of four or more residential units may sublet with the landlord's written consent, and that consent may not be unreasonably withheld. The request goes by certified mail with prescribed information; the landlord has thirty days to consent or give reasons, and failing to send that notice is deemed consent. The same section treats assignment differently: consent may be withheld unreasonably and without cause, but the tenant may then demand release from the lease on thirty days' notice, and that release is their sole remedy.

That asymmetry is the pattern the subject follows. A sublease is something a landlord is often obliged to tolerate, because their tenant does not change; an assignment changes who their tenant is, and the law is far readier to let them refuse.

What "unreasonably withheld" means in practice

Where the standard applies, it is commercial rather than personal. In Kendall v. Ernest Pestana, Inc., the California Supreme Court held that consent may be withheld only on a commercially reasonable objection to the incoming party or the proposed use: financial responsibility, the suitability and legality of the use, any need to alter the premises. California later codified an implied reasonableness standard for commercial leases whose transfer clause requires consent but sets no standard for it.

• Usually reasonable. The proposed occupier cannot evidence income or references, has a record of non-payment, or wants a use the building is not set up for.
• Usually not. The landlord dislikes the applicant, or would rather re-let at today's market rent. Withholding consent to capture the gap between your rent and the market rent is the objection courts reject most often.

So the quality of the request does the work. A written request naming the proposed subtenant, the term and their income, enclosing the draft sublease, is hard to refuse without giving a reason. A text message asking whether a friend could move in is not a request at all, and generates no rights whatever the statute says.

Assigning does not automatically get you out

Tenants assign because they want to leave, and it works less cleanly than that. Under most leases the outgoing tenant stays secondarily liable on the covenants: the landlord looks to the assignee first and to the original tenant if the assignee defaults. The tenancy has moved. The exposure has not.

What ends the exposure is a release — a novation, in which the landlord accepts the incoming tenant in substitution and discharges the outgoing one. Landlords give it when they are comfortable with the replacement and want the deal closed. Ask for it in the same letter as the consent request, and check that the consent coming back actually contains it. If the landlord will not release you, the honest comparison is between an assignment you remain liable on and a negotiated lease termination; breaking a lease early sets out what that costs. Settle the deposit in the same document: the landlord holds one deposit for one tenancy, and on an assignment the outgoing tenant is normally paid out by the incoming one.

Short lets have two locks on them, not one

Listing a rented home on a short-let platform fails a different test from moving a flatmate in: it has to clear both the lease and the local ordinance, and clearing one does nothing about the other.

The lease is the first lock. Residential leases increasingly bar transient occupancy by name: any stay under a stated number of nights, any listing on a hosting platform, any payment for occupancy. Those are ordinary contract terms and they bind you whatever the city permits.

The ordinance is the second, and in the tightest cities it is the binding one. New York City requires hosts of stays under thirty consecutive nights to register with the Office of Special Enforcement, and booking platforms may not process a reservation for an unregistered listing. What registration permits is narrow: the permanent occupant present throughout the stay, no more than two paying guests at a time, and no interior doors locked against them. Letting the whole apartment while you are away is not something registration makes lawful.

What actually happens when someone sublets in breach

Very rarely an immediate eviction. Unauthorised subletting is normally a curable breach, and the sequence is built to let it be undone.

California's just-cause statute makes the shape explicit. Assigning or subletting in violation of the lease is at-fault just cause, but section 1946.2(c) requires the owner to give notice of the violation with an opportunity to cure first, and only if it is not cured may a three-day notice to quit follow. A termination notice that skips the cure step is void.

Two things run in the tenant's favour. A landlord who learns of the sublet and carries on accepting rent may be treated as having waived the breach, which is why notices arrive quickly once a landlord finds out. And where the breach can be cured by the occupier leaving, it usually is — an empty unit is worth less than an occupied one with a compliant tenant on the paperwork.

The version of this that works

Almost all of it is avoided by asking properly. Write to the landlord, name the person, attach the draft sublease, ask for consent; if you are assigning, ask for the release in the same breath. Most refusals a tenant calls unreasonable turn out to be answers to a question never put in writing. A landlord holding a name, a term and an income figure has to find a reason to say no — and making them find one is the whole of the tenant's leverage.