If a tenant is renting an apartment or a house, but has to leave it for an extended period, subletting is an excellent way to keep the residence while away. It also minimizes costs for that tenant. California sublet laws largely rely on what the tenant's contract with the landlord stipulates and on an understanding of local laws. This knowledge makes the difference between costly legal issues and a beneficial relationship between the tenant, the subtenant and the landlord.
Subletting and Assignment in California
When a tenant finds someone to pay rent in his absence, that person is known as the subtenant. A subtenant lives in the residence in place of the tenant, who may have to leave town for several weeks or months at a time, but cannot or does not want to break the lease. A subtenant ensures that the residence will still be available to the tenant upon his return and does not usually deal directly with the landlord of the property. A subtenant can also lessen expenses for the tenant as a roommate.
Subletting can also have its drawbacks. A tenant has to trust that the subtenant will not only pay rent but also keep the residence free of damage and criminal activity. If the person subletting skips a rent payment or causes problems of any kind, the tenant is legally responsible for the subtenant's actions.
Each state has different laws regarding subtenancy, with most landlords prohibiting subletting a property without prior permission. If subletting occurs without the landlord's knowledge, that landlord has the right to serve a three-day notice of eviction to both the tenant and the sublessor.
In the case of an assignment, the tenant transfers the entire lease to an assignee, who takes over the tenant's obligations as outlined by the contract. From that point on, the assignee deals directly with the landlord and becomes the permanent tenant.
California Sublet Laws Regarding Residency
In California, a tenant's lease controls her ability to sublet — she cannot rent to another person if her lease prohibits it. However, if the lease only prohibits assignment, subletting is legal. Most leases will have a clause stating that prior permission from the landlord is necessary, but if it does not mention subletting at all, California law presumes that a tenant may sublet. Even if a lease prohibits subletting, that tenant may sublet, depending on her location and with the landlord's consent.
San Francisco is just one city in California where subletting laws favor tenants over landlords. Enacted in the late 1990s, San Francisco's Rent Board rule, Section 6.15, protects tenants by allowing them to sublet when their landlords make it hard for them to replace roommates. It also protects tenants from losing their residences if they need to leave for an extended period but wish to keep the premises through subletting. According to city rule, even if the lease forbids subletting, a landlord cannot evict a tenant or unreasonably refuse to allow subletting unless the lease has a clause in boldface or enlarged type, which is separately initialed by the tenant and includes a written explanation of the prohibition.
Ending Subtenant Residency
California sublet laws stipulate that roommates are often subtenants to the tenant. A tenant, therefore, can end the residency of a subtenant if certain situations occur:
- If a tenant signs a subletting contract and his roommate is not on the lease, that roommate is a subtenant.
- If a tenant is the only person on the lease, but his roommate has lived with the tenant for less than 30 days, the new occupant is a subtenant.
- If a lease exists between a tenant and a landlord, but does not name roommates, and the roommates pay rent to the tenant, they are subtenants.
If a subtenant rents month to month, and the tenant wishes to end the arrangement, the tenant needs to give notice of 30 or 60 days for the subtenant to vacate. Sixty days is the minimum notice for a subtenant occupying a residence for over a year, and 30 days is the minimum notice for a subtenant who lives in the residence less than a year. If the subtenant does not wish to leave, the tenant must follow the same eviction procedures that a landlord would, since that tenant is a landlord to the subtenant.
California doesn't always require reasons for eviction. However, in some cities such as Berkeley, Oakland, San Francisco and Los Angeles, a tenant must provide just cause for removal, in which case that tenant can give a subtenant only three days' notice to evict. A tenant cannot remove a subtenant for retaliatory or discriminatory reasons, but can do so for legitimate reasons such as:
- Failure to pay rent.
- Property damage.
- Violence against other tenants.
- Using the residence for illegal activities.
- Committing drug or weapons-related offenses.
- Dog fighting or cockfighting on the property.
- No-fault just cause, such as removal of the residence from the rental market, unsafe occupancy of a property or an intent to demolish or remodel the property
If a tenant evicts a subtenant with 30 to 60 days' notice, just cause will likely not apply.
- California Legislative Information: Assembly Bill No. 1481
- ASUC Renters' Legal Assistance: Subletting
- City of San Francisco: Section 6.15 Subletting and Assignment
- Flip: How to Sublet Legally in California
- For Rent: 5 Things to Know About Subletting & Subleasing
- Ruzicka, Wallace & Coughlin LLP: Assignment and Subletting