Subleasing Your Apartment

Can I Sublease My Apartment?

We’ve received a number of questions in the last week regarding subleasing and assignments of residential leases. As this appears to be a recurring issue for many, we want to provide a quick overview of the law of subleases and assignments in Massachusetts.

The general rule is that a tenant has the right to sublet or assign her lease unless that right is restricted in the lease agreement. And just to be clear, a “sublease” is a transfer of less than the tenant’s entire interest (i.e. a tenant with 6 months remaining subleases the apartment to a sublessor for 3 months, with the tenant to move back in for final 3 months of term); whereas an “assignment” is a transfer of the tenant’s entire interest in the lease (i.e. a tenant with 6 months remaining assigns the entire 6 months to an assignee and moves out for good). While most people use the term “sublease” to refer to both scenarios, each term has distinct legal consequences.

Most leases will restrict the tenant’s right to sublease or assign. Landlords understandably want to control, to a certain extent, who will be moving into their apartments. Restrictions will run from a blanket prohibition against subletting to requiring some form of written consent from the landlord. Subleases and assignments made without the consent of the landlord in these situations are void, as the tenant has no interest to convey under the circumstances. Worse still, the attempted sublease or assignment may constitute a violation of the lease and give rise to an eviction action.

Outright prohibitions on subleasing and assignments are enforceable by the landlord. If your lease contains such a restriction, your best bet may be to simply negotiate with the landlord in hopes that the landlord will waive the prohibition. Restrictions requiring the written consent of the landlord do not require the landlord to act reasonably in granting such consent. Thus, even if you propose a responsible and financially attractive subtenant or assignee, the landlord may withhold consent in its sole discretion. Other restrictions will require the consent of the landlord “which consent shall not be unreasonably withheld,” or some variation thereof. Under these leases, landlords are obligated to act reasonably but, as you might expect, there is no objective reasonability standard. If the landlord unreasonably withholds consent, you may be relieved of your obligations under the lease.

If you successfully sublease your apartment, beware your ongoing obligations. For a true sublease, no landlord-tenant relationship exists between the landlord and your subtenant. You remain primarily liable to the landlord. Thus, if your subtenant fails to pay rent, damages the premises, or refuses to vacate at the term of the lease, you are on the hook. However, if you have assigned your lease with the consent of the landlord, you have essentially substituted the new tenant (the assignee) with yourself, and you should have no further liability under the lease.

In short, if you need to leave your apartment and want to sublease or assign, always contact the landlord first to obtain written consent. Never sign an agreement with a subtenant or assignee before this. And if your landlord refuses to consent, do not send your landlord a letter “cancelling” the lease. Unless your lease agreement gives you the express right to cancel at will (and it probably does not), “cancelling” a lease is a breach of your obligations and may give rise to an action for damages against you. Those leases that do allow cancellation typically set forth a specific procedure and notice period for doing so, along with a termination fee. So instead of mailing in that letter, give us a call and we’ll review your options with you.