Often, as a tenant, you need to get out of a lease early, maybe because of a job relocation or an interest in moving in with a partner. Or perhaps you just want someone else to rent (sublet) your place while you’re away for the summer. Before posting an ad on Craigslist or promising your apartment to a friend, check your lease: Most prohibit subleases or assignments without your landlord’s consent—although the laws of most states require landlords to accept a suitable replacement you propose.
Also, as with all tenants, a landlord may legally reject someone based upon his or her inability to pay the rent or a bad credit history, but may not reject an applicant for discriminatory reasons, such as race or gender.
What Exactly Are Assignments and Subleases?
Ideally, when you want to move out of a rental before your lease ends, your landlord agrees, cancels your lease early, and you can move on without worry.
But many landlords, especially in markets with a surplus of rental properties, will not be so obliging—in which case, you might consider whether a sublease or lease assignment is an option.
A sublease is when you transfer some (but not all of) your rights to use and enjoy the premises; you keep some right to re-enter or retake the premises. For example, you have a 12-month lease but you plan to go on a three-month vacation in the middle of the lease period. With a sublease, someone else (called the “subtenant” or “sublessee”) lives in your apartment for those three months and pays rent to you. When the three-month sublease is over, the subtenant must leave, and you have the right to re-enter the premises. During those three months, you’re the subtenant’s landlord, also known as the “sublessor.”
Assuming your landlord approves, there are some major negatives to subleases. When you sublease, your lease with your landlord is still in effect, and your landlord can enforce the lease against only you—not your subtenant. For example, you're responsible for paying rent to your landlord during the sublease period, even if the subtenant doesn't pay you. You're also responsible for any damage the subtenant causes. In a worst case scenario, the subtenant might refuse to leave when you return, forcing the landlord to evict both of you.
Because you're legally responsible for your subtenant's actions, screen potential subtenants carefully—checking references and getting credit reports are just a couple of the steps you can take to find a quality subtenant. Once you've found a subtenant (and, assuming you have your landlord's permission) protect yourself by preparing a clear written agreement with the subtenant specifying key terms such as rent, length of the tenancy, and security deposit.
If you want to move out of your rental permanently, but your landlord won't cancel your lease, find out if your landlord will allow you to assign your lease. An assignment is when you transfer all of your remaining interests in the lease to someone else, called the “assignee” (you’re the “assignor”). If you want to leave six months into a 12-month lease, the assignee takes over your lease when you move out, creating a binding, legal relationship between your landlord and the assignee. For example, if the assignee damages the rental, your landlord can sue the assignee; and if the landlord fails to make repairs, the assignee can pursue legal remedies against the landlord.
But you’re not completely off the hook with an assignment: Unless you and your landlord agree otherwise, you remain responsible for rent if the assignee fails to pay it. For this reason, your landlord may be more amenable to an assignment than a sublease. If your landlord agrees to an assignment, take extra care in choosing an assignee who is financially solvent and responsible.
More Information on Subleases and Assignments
If you have any questions about your rights and responsibilities when it comes to subleasing or assigning your lease, check landlord-tenant laws in your area, or get some help from an experienced landlord-tenant lawyer. Know your rights before you approach your landlord—and the potential consequences if the law (or your landlord) is not on your side.