1. Difference between sublease and assignment

Under a sublease, the new tenant is granted only the specific rights provided in the sublease. The original tenant still remains ultimately liable for residual obligations under the lease or any failures of the new tenant to follow the agreement. This means the original tenant will be responsible (in equal measure with the new tenant) for any skipped rent payments or damage to the property.

This is different in an assignment. An assignment is a complete transfer of the original tenant’s interest in an agreement to a new tenant. In this case, the original tenant is giving all their interest to the new tenant, and they are released from most of their obligations under the lease.

2. Usage of the subleased premises

A sublease may be for all or a part of the rented property. The tenant can only allow the subtenant to use the property for purposes stated in the original lease. In other words, the tenant can only transfer the rights that it had in the first place. If the subtenant intends to use the property for a new use not contemplated by the original lease, the landlord must give express consent to this new use.

3. Need for landlord’s consent

Although the landlord is not required to consent to the sublease, in some cases, the lease will state that the landlord’s consent will not be “unreasonably” withheld. This is more common in commercial leases. What is considered unreasonable varies from jurisdiction to jurisdiction, and the laws in your area must be reviewed for additional information.

4. The process to be followed by a landlord before providing consent

Creating a standardized policy and procedure for responding to sublease consents is a good idea. Dealing with them case-by-case leaves the landlord open to accusations of improper or unfair dealing.

A smart first step is to send a written notice to the tenant requesting detailed information about the proposed new tenant's finances and planned property uses. The letter should also inform the original tenant that the approval process will begin after receiving this information.

5. Criteria for landlords in providing consent

When deciding whether or not to consent to the sublease, consider only proper factors. Some criteria will be regarded as impermissible by courts, such as refusal based on the race or sex of the proposed subtenant.

If the landlord intends to refuse their consent, it is advisable to talk to an attorney and ensure the refusal is permissible. Moreover, if the landlord refuses the consent, the tenant must receive clear written reasons for the refusal decision. Failure to provide such reasons can itself be deemed unreasonable.

6. Effects of not providing consent

Depending on the jurisdiction or the terms of the original lease, failing to respond to a tenant’s request for consent to sublease within a specific time may be deemed consent. Sometimes, it may give the tenant grounds to terminate the lease. In any event, responding within a reasonable time frame is a good idea. Review the governing lease and the state's laws for additional details.

In the face of tenant opposition to a refusal, be cautious about terminating the lease or evicting the tenant. If the refusal was wrongful, these steps might end up limiting the landlord’s ability.

Key elements to be included in the sublease agreement

The following instructions will help in understanding the terms of the consent. Please review the entire document before starting the step-by-step process.

Introduction

In the first section, identify the document as a consent to sublease of a lease agreement. Also, add the date on which the consent will become effective.

Add the name of the parties involved and, if applicable, what type of organization they are. Mention that the lessor of the property is called the “landlord,” the lessee is called the “tenant, and the person getting the property subleased is the “subtenant.”

Recitals

The “whereas” clauses, referred to as recitals, define the world of the agreement and offer key background information about the parties. In this consent, the recitals include a simple statement of the parties’ intent to sublease the tenant’s interest in the lease and the landlord’s intent to consent. Provide a brief description of the property being rented and the name of the new tenant to whom the lease is being subleased. Also, attach a copy of the lease to the consent.

Consent to sublease

This section mentions the landlord’s consent to sublease the tenant’s interest in the lease. This section also mentions that neither the sublease nor this consent will discharge the tenant from their duties. To provide such consent, attach a copy of the proposed future sublease form to this document.

Continuing liability of tenant

This section emphasizes that the tenant will remain liable for their duties under the lease. In any order, the landlord agrees to seek rent payments from the tenant or the subtenant.

Continuing effectiveness of lease

This section clarifies that except for the sublease terms, all the original terms of the lease are still effective on the sublet premises.

Monthly basic rent

This section specifies the rent amount payable by the subtenant to the landlord. The rent amount paid by the subtenant should be the same as that paid by the old tenant under the original lease.

Sublease subordinate to lease; consent

This section emphasizes that the direct lease is still the controlling document governing the landlord and tenant's legal relationship. In other words, the tenant and the subtenant can’t change the terms through their separate agreement.

Additional terms of sublease

An optional provision allowing the landlord and the tenant to include any representations, warranties, or other provisions particular to their situation. For example, the landlord may wish to assign a new parking space to the subtenant.

Interpretation

This section provides information that both parties were on equal footing in negotiating the consent to assignment. In many cases, a contract is interpreted favorably by the individual who did not draft it. This clause clarifies that both parties were involved in the drafting, so the document should not be read in favor of (or against) either.

Modification

This section indicates that any changes to the document are only effective if they are made in writing and signed by both parties.

Governing law

This section allows the parties to select the state laws used to interpret the document.

Counterparts; electronic signatures

Once the parties hereto agree to the terms of this document, this section conveys that even if the parties sign the consent from different locations, handwritten or electronic, all the separate pieces will be considered part of the same agreement.

This provision ensures that business can be transacted efficiently without sacrificing the agreement’s validity as a whole.

Entire agreement

This section ensures that both parties are in agreement with the document they’re signing. However, including this clause will not prevent any party from arguing that other enforceable promises exist but protects from these potential claims.

Frequently asked questions

What's a landlord's consent to sublease?

In most lease agreements, a tenant is only allowed to sublease their interest in real estate with the prior written consent of their landlord.

If the landlord is willing to allow a sublease, having all the information in the requested landlord's consent to sublease document is vital. It is best to have a specific written agreement signed for a tenant to sublease.

What information is needed when requesting the landlord’s consent?

Here's the information needed to provide in a landlord consent to sublease:

• Who the tenant is: Have their name and contact information ready
• Who the landlord is: Have their information available
• Location: Know the address of the rental property