What Are Subtenant Rights if the Primary Tenant Moves Out?

When the primary tenant moves out, the subtenant is often in a vulnerable legal position because they do not have a legal agreement with the landlord. In some cases, the subtenant can assume the previous tenant’s lease. However, most states do not require the landlord to give special allowances to the subtenant, and the landlord can evict the subtenant for the tenant’s lease violations.

If the primary tenant plans to move out, discuss your options with the landlord to avoid a surprise eviction. If the landlord won’t negotiate, talk to a landlord-tenant lawyer to protect your legal rights and recover compensation from the defaulting tenant.

Your Rights When Signing a Sublease

A sublease is an agreement between the tenant and subtenant to rent all or part of leased property that the tenant has a lease with the landlord to use. Subleasing is common in college towns, during summer breaks, or in shared apartments when roommates change over time.

For example, the primary tenant signs a rental agreement with the landlord to rent a two-bedroom apartment for one year. After six months, the primary tenant signs a rental agreement with the subtenant to rent one of the bedrooms for the remaining six months. The primary tenant has a legal contract with the landlord. The subtenant has a legal contract with the primary tenant. However, the subtenant does not have a contract with the landlord.

A sublease is a separate agreement from the primary lease. There is no direct relationship between the landlord and subtenant. This can complicate the rights and obligations of each party when disputes arise among the landlord, tenant, and subtenant.

Many lease agreements prohibit subleasing or assigning the tenant’s interest in the property without the landlord’s approval. Sublease and assignment restrictions are common to prevent confusion and potential litigation when disputes arise between the parties involved.

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Subtenant’s Rights When the Tenant Does Not Pay

As the subtenant, your primary rights and responsibilities exist between you and the primary tenant. You do not have a direct contract or lease agreement with the landlord. Unfortunately, this ties you to the bad behavior of a negligent tenant.

If the primary tenant moves out or stops paying rent, you may want to remain in the property. However, the landlord can evict the tenant, which includes you as the subtenant. Your options can vary depending on where the rental property is located. States are generally divided on whether the subtenant has limited rights or no rights.

Unfortunately for subtenants, in most states, subtenants do not have a right to cure the primary tenant’s default for unpaid rent, breaking a lease, or other reasons for an eviction. It may not seem fair, but the subtenant never had a direct agreement with the landlord. Their only rights for compensation are against the primary tenant.

However, in a number of states without common law rights to cure, the landlord must still name any co-tenants and subtenants in an eviction notice. This gives the subtenant written notice and time to move out, but they may still lose their rental unit. If the landlord serves an unlawful detainer or eviction pleading, you can try to negotiate a new lease or additional time to move out.

In a handful of states, subtenants do have an option to remain in the property if they take over the primary tenant’s lease. The landlord may issue an unlawful detainer notice to begin eviction proceedings. As the subtenant, you may have a right to cure the tenant’s default and thereby waive the eviction notice. This could include paying the primary tenant’s unpaid rent for the remainder of their lease.

Generally, the landlord will want to negotiate a new lease with the former subtenant now listed as the primary tenant. The subtenant can still seek reimbursement from the primary tenant for violating the sublease agreement, but they may have difficulty collecting.

Primary Tenant’s Rights and Obligations

The specific legal rights and obligations between the landlord, tenant, and subtenant vary by jurisdiction. Some states and municipalities have stronger renters’ rights protections than others. To understand your rights and obligations as a landlord, tenant, or subtenant, review your local landlord-tenant laws.

The primary tenant has legal rights and obligations with respect to the landlord and the subtenant. The primary tenant must pay rent under the lease, and the landlord can evict if the tenant breaches the lease.

The landlord must provide the tenant a habitable property with basic services such as heating, running water, and other features required by local housing code.

Separately, the tenant must provide the subtenant access to the property under the terms of the sublease. If the subtenant fails to pay rent, the tenant can begin legal proceedings against the subtenant to evict them from the property. If the subtenant has a problem with the rental (faulty safety equipment, water damage, etc.), the tenant must act as the go-between to make sure the landlord corrects any defects.

Subtenant’s Rights and Obligations

The rights and obligations of the subtenant should be spelled out in the sublease. However, the primary tenant cannot grant more rights or access to the property than they have under the primary lease. For example, if the primary lease is for a limited term of one year, the tenant cannot sublease the property to the subtenant for a two-year term.

A subtenant is limited to their rights under state law, the terms of the sublease, and the original primary lease. The subtenant’s obligations are similar to those of other tenants, but they are owed to the primary tenant.

The subtenant makes rent payments to the primary tenant and must follow the terms of the sublease. The subtenant is responsible to the primary tenant for any property damage, and the costs to repair damaged rental property come out of their security deposit.

Special Conditions for Rent-Stabilized Tenants

In jurisdictions with rent stabilization or rent control, tenants and subtenants may have additional limits on rent increases, subletting, and lease renewals.

For example, in New York City, the Rent Guidelines Board sets annual guidelines for many rent-stabilized leases. Rules can also limit what a tenant may charge a subtenant, and may allow only certain permitted increases when a rent-stabilized apartment is sublet. Talk to a landlord-tenant lawyer about your rights as a subtenant in a rent-stabilized or rent-controlled apartment.

Understand the Risks Before Signing a Sublease

Subleases are a great way to get a short-term rental without getting a full rental background check. However, subtenants do not have all the legal rights of a primary tenant under state and local renters’ rights laws. If you have questions about your rights as the subtenant when the primary tenant moves out, contact a local landlord-tenant lawyer for legal advice.