what happens if someone subleases apartment without permission?

Can a person sue someone else for not paying rent for an apartment that was being
subleased without permission in the first place?

Asked on April 26, 2017 under Real Estate Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Without who's permission? If you mean the landlord's permission, then the issue is, was there a written lease prohibiting sublets, or requiring the landlord's prior permission? If so, then the main tenant has violated the lease for subletting without permission and could be evicted for his or her lease violation if he/she does not remove the subtenant promptly on demand. If the main tenant is evicted, the subtenant has to go with him or her, because the subtenant gets his/her rights from the main tenant--no main tenant, no right to be live there.
If there is no written lease, or there is one and it does not restrict subletting, then landlord permission is NOT needed: a unit may be sublet unless prohibited or restricted by a written lease.
As for who can sue for the rent: the landlord can sue the main tenant, if the landlord is not being paid: the landlord-tenant relationship and contractual (lease) obligations (even if there is no written lease, there is still an oral one) are between the landlord and main tenant; the landlord has no rights directly against the subtenant, who has leased from (is contracted with) the main tenant. The main tenant who is subletting can sue his/her subtenant for not paying rent, or evict the subtenant for nonpayment, the same way a landlord can evict or sue the main tenant for nonpayment.


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