Is it legal for my tenant to sublease his place to another when it is not mentioned in the lease? Should my lease have specifically prohibited assignments and subleases?
A good lease agreement with adequate supplemental documentation should cover a variety of issues that arise in property management. Having specific lease clauses that pertain to important issues can help avoid problems.
In our opinion, yes, your lease agreement should have included a clause that prohibits a tenant from subleasing any part of the rental premise or assigning his lease agreement without prior written consent of the landlord. This language in your lease agreement provides you some flexibility to approve or disallow any potential subleasing or assignment. A lease clause prohibiting lease transfers without written consent of the landlord also establishes a material condition of the lease. If a tenant transfers his lease through subleasing or assignment without the landlord’s consent, the tenant has committed a breach of his lease. The landlord could consider this breach as grounds for eviction or for a lawsuit due against the original tenant because of losses caused by the replacement tenant.
An inadequate lease might give the landlord absolutely no control or options. Many states will not allow a landlord to outright prohibit either or both methods of lease transfer, but a landlord can almost always have reasonable requirements for approval. For example, the landlord can usually require the new tenant to meet the same qualifications as the old tenant. This might include screening (e.g., ID verification, credit report, criminal checks, etc.) and specific financial requirements. Whether one can force the assignee tenant to accept different terms would depend upon (1) terms of the lease agreement, (2) issues related to the nature of the business, (3) qualifications of the new tenant, and (4) possible other factors.
Your tenant may be able to sublease his place. In many states a tenant may sublease or assign his lease if not prohibited by the lease agreement. Some states’ statutes specifically prohibit subleasing or assignment without permission of the landlord. Many states prohibit the landlord from “unreasonably” refusing to allow a sublease or assignment – for example, not allowing a replacement tenant who is qualified in the same manner as was the original tenant.
Even if covered in some way by statute and especially if not, your lease agreement should cover the issue in detail and as strictly as allowed by law.
In no case can a landlord discriminate against any protected class regarding a replacement tenant, whether the replacement is done by assignment, sublease, or new lease.
There can be important differences between a sublease and an assignment, depending on state law and/or on the particular clauses in a specific document, that might make a landlord prefer one over the other if the landlord has a choice, but, if done without the landlord’s permission, even without his prior knowledge, either procedure can result in problems for the landlord