My tenant wants to sublet her apartment for the summer. If I agree, how can I protect myself from any legal problems?
Start by checking your lease or rental agreement: It probably includes a clause prohibiting tenants from subletting their rental unit without your prior written consent. Depending on the situation, you may or may not approve the sublet (if you’re lucky enough that the tenant even asks if it’s okay—many don’t, especially if their landlord lives out of the area). You might, for example, want to accommodate (and keep) a good long-term tenant who is going out of the country for the summer and has every intention of returning in the fall.
If you agree to a summer sublet, here are the basic steps to take:
- Check that the proposed subletter (subtenant) meets your normal criteria for choosing tenants, such as a good credit report and positive references from other landlords. In a few states, including California and Florida, landlords may not unreasonably withhold their consent to sublet, without a good reason. Even if it’s not the law in your state, don’t reject someone unless you have a good business reason for doing so.
- Make sure that your original tenant (not you) retains the primary relationship with the subtenant and continues to exercise some control over the rental property—for example, by reserving the right to retake possession at a specific, later date. Ask your tenant to sign a sublease agreement with the subtenant that covers key terms, such as rent and deposits, and incorporates the lease or rental agreement you have with your tenant. See Nolo’s Sample Tenant-Subletter Agreement as a model for the tenant to use in preparing this agreement.
- Don’t accept rent from a subtenant—this might turn the subtenancy into a tenancy and take your original tenant off the hook for rent.