Subleasing is an effective tool used by tenants to reduce living expenses or replace roommates.  This article discusses the fundamentals of a sublease arrangement and explains the parties’ rights and obligations under such an agreement.   

What is a Sublease?

A sublease is the re-renting of property by an existing tenant to a new third party (the subtenant) for a portion of the tenant’s existing contract or space. The person the subtenant pays rent to is called the master tenant. The sublease agreement may also be called a sublet. Under this contract, the subtenant agrees to pay rent to the master tenant, who then pays the landlord.

The master tenant essentially occupies the position of the subtenant’s landlord.  A subtenant has no actual dealings with the landlord. 

A subtenant is not to be confused with a cotenant.  A cotenant relationship exists where both tenants have a direct relationship with the landlord under a lease agreement or because they pay rent directly to the landlord.

A California subtenant has all the same rights and obligations as a regular tenant. When evicting a subtenant for whatever reason, the master tenant must follow the proper legal procedures to avoid a wrongful eviction lawsuit.

Subtenants must abide by the terms of any subtenancy agreement, and by the terms of the original lease.  The master tenant is responsible for ensuring that the subtenant follows the terms of the original lease.

Can Subletting be Denied by the Original Landlord?

Subletting a rental is permitted in California if the landlord doesn’t expressly prohibit it in the lease agreement.  Even where the lease specifies subletting is not permitted, a landlord may only reject the proposed subtenant for certain reasons.  For example, a landlord may prohibit the sublet where the subtenant poses a danger to others, has poor credit, or gives false information to the landlord. Conversely, a landlord cannot deny a proposed subtenant who was financially qualified and willing to carry out the terms of the original lease.

What is the Process for Evicting the Subtenant?

The original landlord cannot evict a subtenant. This is because the landlord has no contractual relationship with the subtenant, even though the subtenant is living in the landlord’s property. Only the master tenant has standing to evict the subtenant.

When a master tenant seeks to evict a subtenant, he or she must follow the specific legal process applicable to California’s eviction laws.  Specifically, the master tenant must first provide the subtenant with written notice of their intent to evict.  If the subtenant is still there after the notice period expires and has not cured any fixable violations of the lease or applicable law, the next step would be to file an unlawful detainer action against them to initiate a formal eviction process. To do this, the master tenant must file a complaint with the court and serve it with a summons to the subtenant. After receiving these documents, the subtenant has five business days to respond or vacate the residence. If they respond, the court will set a date for a hearing that both parties must attend. If the court decides in the master tenant’s favor at the hearing, a write of execution will be issued authorizing law enforcement to physically remove them within 5 days.  Once that occurs, the master tenant can legally change the locks.

Please contact Lynx Legal with any questions regarding the above.  We can be reached at 888-441-2355 or [email protected].  Our experienced professionals are standing by to answer any inquiries, and to assist you in handling all of your eviction needs.