Most people do not distinguish between subletting and renting an apartment. From a legal point of view, however, they are very different institutions, which carry different rights and obligations. Therefore, a lease for an apartment is not a sublease and a tenant does not equal a subtenant. In our article we will look at the differences between the two forms of housing.
Renting and subletting an apartment may not be that different in practice, but where they differ is in the legal framework and also in the way problems need to be dealt with. The main differences are:
A flat lease is concluded by a lease agreement directly between the owner of the flat (landlord) and the tenant. The relationship between the tenant and the landlord is regulated by the Civil Code and provides the tenant with considerable protection.Also, the lease agreement cannot be terminated just like that. It is therefore necessary to have statutory grounds.
Tip: For everything about rent and a guide to drawing up a lease, see our next article.
On the other hand, the sublease agreement is concluded by the tenant with a third party (the subtenant). This contract is not regulated by the Civil Code and therefore has no statutory rules. It can be terminated at any time without giving any reason.
The landlord must ensure that the tenant is able to occupy the apartment before moving in. This means that it must be clean and in good condition. The landlord is also obliged to provide the necessary services such as water, heat, electricity etc. The landlord can only increase the rent to match the price of similar rentals on the market and by no more than 20% every three years. The tenant is also allowed to run a business or keep animals in the apartment. The landlord is also obliged to arrange certain repairs.
Tip: Wondering when exactly the landlord is responsible for repairs and improvements in the apartment? And how much can the tenant interfere with the apartment? Find out in the next article.
This protection does not apply to subtenants, but this does not mean that they are completely without protection. As our laws do not regulate subletting, the nearest legislation, that is the lease, will apply if necessary. Therefore, in certain circumstances, a lodger has similar protection to a tenant. However, the main problematic point is that the sublease agreement is dependent on the lease agreement and therefore if, for example, the lease agreement is terminated, the sublease agreement is automatically terminated. Another disadvantage is that if you live in a sublet, you are not entitled to housing benefit. However, you have the option of claiming Housing Benefit. However, you have to meet much stricter conditions.
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The owner of an apartment is Mr Novák, who rents it to Mr Bílý. Mr White becomes a tenant in Mr Novak’s flat. However, Mr White also wishes to sublet the flat to Mr Cerny.
In practice, this means that if Mr. Bílý receives a notice of termination of the lease (or resignation from the lease) from Mr. Novák and has to move out at the end of the year, Mr. Černý will also pack. The sublease is dependent on the apartment lease.
The list of differences does not end there. The position of a subtenant is much weaker than that of a tenant. There are opinions that in a sublease agreement it is possible, for example, to prohibit business in the apartment or the presence of animals, which is not possible in a lease agreement.
It is also often interpreted that a sublease can be terminated without giving reasons, unless the parties agree otherwise. This is a fundamental difference from a lease, which can only be terminated against the tenant’s will for legal reasons or for reasons agreed in the lease.
Thus, in our legal practice, we sometimes encounter tactics where one person formally leases an apartment to a relative, who then sublets the apartment to a third party. The purpose is precisely to limit the rights of the “subtenant”. However, this cannot be recommended as it may be a way of circumventing the law.
As a general rule, the tenant should have the consent of the landlord, i.e. the owner of the flat, to sublet the flat. However, consent is not required if the tenant permanently lives in the apartment himself and unless the parties have expressly agreed in the lease that consent is required. Moreover, practical experience shows that lease agreements often contain a clause that prohibits the tenant from subletting the apartment without the owner’s consent. Even if the landlord agrees to sublet his apartment, he may condition the subletting further – for example, by increasing the tenant’s rent or fees associated with the use of the apartment.
Thus, if Mr. Bílý leases a three-room apartment from Mr. Novák and wishes to sublet one room to Mr. Černý, with both men continuing to live together in the apartment, Mr. Bílý does not need Mr. Novák’s consent as the owner of the apartment. Mr White would have to have consent if he did not live in the flat permanently himself or if this was expressly stated in the lease.
As a prospective subtenant, you should be interested in obtaining the owner’s consent and in his person in general. Although you and the tenant may be friends or even related and moving into a shared accommodation together, you will want to see the tenancy agreement. Although neither the tenant nor the landlord is legally obliged to show you the tenancy agreement, it is advisable to at least ask for confirmation of its existence, including information about its duration. This is, after all, an important factor in deciding whether to enter into a sublet agreement. As we said above, the sublet falls at the same time as the lease, so you will probably want to know until when you can theoretically occupy the flat. It also won’t hurt to check the Land Registry to make sure that the apartment actually belongs to the person who has been introduced to you as the owner.
Tip: Moving? Are you wondering whether a lease or a sublease would be better for you? Consider carefully, as they are very different from each other. A sublet agreement is only for specific forms of housing – typically shared housing and condominium subletting. We’ve covered the details of the contract in our separate article.
The tenant’s request for consent to sublet the apartment, as well as the landlord’s consent itself, must be made in writing. The landlord must respond in writing within one month of receiving the tenant’s written request as to whether to grant consent. If the landlord does not respond to the request within this period, he is deemed to have consented to the subletting of the flat.
The tenancy agreement may also contain a complete prohibition on subletting. In such a case, this excludes this possibility in advance and the landlord does not even have to respond to the tenant’s request.
If the tenant sublets the apartment without the owner’s consent or does so despite the prohibition in the lease, he or she is in gross breach of his or her obligations. The penalty may be termination of the lease and the tenant must move out within three months.
Tip: Renting an apartment is not easy. You need to handle all the details of the lease and protect your rights and your property. No landlord probably wants to recover a damaged apartment after a few months or years or deal with unpaid rent payments forever. So what to look out for and how to rent an apartment as safely as possible?
We have already mentioned that the sublease agreement does not have a statutory form. However, it is a good idea not to underestimate it and to write down everything important in it. At a minimum, it should contain the following information:
Tip: Don’t rely on the free sublease templates you can find on the internet and have an Affordable Solicitor draw it up instead. You will avoid mistakes and be sure that the contract is really valid.
Thelease of an apartment is a contract concluded between the owner (landlord) and the tenant, protected by the Civil Code. On the other hand, a sublease is a contract concluded by the tenant with a third party (subtenant), which is not regulated by law and is terminable without giving any reason.
Subletting is only possible with the landlord’s consent. If this is done without his consent or against his will, he can terminate the tenancy agreement. The sublease agreement does not have a precise form, but it is advisable to draw it up in detail, including details of the parties, rent, services, duration and obligations. We recommend careful consideration between a lease and a sublease as they differ significantly in legal protections and obligations.
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Ondřej is the attorney who came up with the idea of providing legal services online. He's been earning his living through legal services for more than 10 years. He especially likes to help clients who may have given up hope in solving their legal issues at work, for example with real estate transfers or copyright licenses.
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