Who is a subtenant?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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A subtenant is a person who has the right to use and occupy rental property leased by a primary tenant from a landlord. A subtenant has responsibilities per their rental agreement to both the landlord and the tenant. Their contract may differ from the master lease depending on the people involved.

Before a subtenant can occupy a rental unit, a tenant typically must obtain the prior consent of the landlord. The tenant remains responsible for payment of rent to the landlord and any damages to the property caused by the subtenant.

What Rules Do Subtenants Abide By?

When you enter into rental operations with subtenant, it is imperative that you understand exactly what the rules and legal protections are. Keep in mind, they may vary state to state. It is also important that you ensure the landlord is on board with this arrangement. There are some apartment leases that specify that a tenant is not allowed to sublet his or her apartment. If you sublet an apartment illegally then you could find yourself without some of the protections that are in place for tenants.

For example, if you sublet illegally, you could have few or no rights against the landlord since your agreement is  with the tenant. The master lease would invalidate your agreement. Since you have limited or no tenants’ rights against the landlord in many of these instances, you could find yourself being evicted on short notice.

Further, aside from landlord/tenant rules imposed by a lease, there may also be rules on subletting imposed by a municipality. For example, if the apartment is rent controlled, there may be restrictions on when and how subletting may take place. If you’re subletting, the limits on lawful rent increase don’t necessarily benefit you. You probably did not go through affordable housing applications and other necessary steps to benefit.

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What Types of Subtenant Are in Your State?

Generally, there are two major types of subtenant we think of in a modern context.

  1. The long-term subtenant
  2. The short-term subtenant

The names tell you exactly what they are. A long-term subtenant could be someone renting a room from the tenant who rented the whole house. They typically have some kind of formal rental agreement, whether that be month-to-month, a year, or something else. As long as the property owner is on board and the master contract is being followed, this is generally fairly simple.

The short-term subtenant could be part of a direct relationship with a friend or family member staying with a renter. Some rental agreements have “no overnight guest” clauses. In other words, nobody but you is supposed to stay in the unit overnight. It could also be a short-term renter who went on a vacation rental website. Some states have made attempts to outlaw these types of transactions. Even if the state allows it, many property owners and homeowners associations have added clauses to their contracts prohibiting vacation subletting.

In any case, before you sublet an apartment you should always check your contract and property vet any potential subtenant. Tenants who rent to subtenants ultimately become responsible for them, whether that means paying additional rent if they’re late or repairing damage. This could mean setting a base rent that’s a certain amount higher than what you pay. It could also mean looking into different insurance plans or setting short contract terms to avoid extra costs if the property owner raises the rent on you.

You will also want to speak to an attorney. They can help you avoid hiccups with an unauthorized sublease transaction. Lawyers can also advise tenants on the best ways to protect themselves from rent increases the tenant could get stuck paying.

Most importantly, a good real estate attorney can help tenants follow local laws. Before you run into a list of issues and consequential damages, have an expert look over your property and contract. Even if current market conditions are extra favorable, getting it right is worth the wait.

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