WORDS: ANNE SCHAUFFER | IMAGE: SHUTTERSTOCK
Lauren Maltby, director: property division, Venns Attorneys, unpacks the legal definition of subletting. “A contract of lease is concluded between a lessor – the landlord, who is usually but not necessarily, the owner of the property – and the lessee (the tenant). A sublease is therefore a contract between the lessee (the head tenant) and a third party (subtenant). It’s a separate contract of lease, and the third party does not acquire greater rights than those held by the lessee.”
Is it legal for you to sublet a property for the remainder of your lease? Maltby says it depends on two factors: firstly, the wording of the agreement, and secondly, the use of the property. “If the agreement prohibits subletting, you will not be able to sublease. If the agreement is silent, you will be able to sublease as long as the property is classified as an urban property.”
She explains that if the property is classified as a rural one, however, the written consent of the lessor is required. “Note that the classification of a property as either urban or rural depends on what the property is used for and not simply where it is located.”
What do lease agreements say?
It seems that most agreements, especially those used for commercial leases, are likely to prevent subletting. As Maltby says, “This obviously provides the landlord with a measure of control over the use of the premises, and protects the investment.”
What if I draw up my own lease agreement?
“Generally a landlord (lessor) would not want to allow subletting of the property,” says Maltby. “Clauses such as ‘The lessee shall not be entitled to sublet the leased premises, or to permit any third party to occupy the leased premises without the lessor’s prior written consent’, as well as ‘The lessee shall not be entitled to cede or assign any of the lessee’s rights and/or obligations under this lease’ may be prudent to include.” She adds, “It’s important to note, however, that consent by the landlord cannot be unreasonably withheld.”
The first tenant (head tenant) remains fully responsible for the premises under the original lease agreement for as long as the sub-tenancy lasts. As a result, the head tenant remains liable to the landlord for the rental and the condition of the premises. Should the subtenant damage the property, the landlord has a claim against the head tenant, who can then, in turn, take action against the subtenant.” And, cautions Maltby, “This would of course have an impact on the possible loss of the head tenant’s deposit as a result of the actions of the subtenant.”