Renting an apartment vs. subletting – what’s the difference?

Chapters of the article

• Subletting and renting in examples
• Attention to the consent of the landlord
• Form and time limit for consent
• Penalties for breach

Subletting and renting in examples

Let’s take a simple example:

The owner of an apartment is Mr. Novák, who rents the apartment to Mr. Bílý. Mr White becomes a tenant in Mr Novak’s flat. However, Mr White 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.

Beware of the consent of the owner of the flat

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 fact when 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 how long 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.

Form and time limit for granting consent

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.

Penalties for breach

If the tenant sublets the apartment without the owner’s consent or does so despite the prohibition in the lease, he or she commits a gross breach of his or her obligations. The penalty may be termination of the lease and the tenant must move out within three months.