When is it advantageous to conclude a sublease agreement? And how does it differ from a lease?

Chapters of the article

• Specifics of the sublease agreement
• What should a sublease agreement for an apartment contain?
• Advantages and disadvantages of subletting
• Sublease agreement for non-residential premises
• Take care of both the owner and the tenant of the apartment
• Condominium sublease agreement
• Landlord Beware and landlord tricks
• Summing up

Specifics of the sublease agreement

A sublease agreement is concluded when we arrange to live in an apartment or room not with the owner of the apartment, but with his/her tenant, who most often already occupies the apartment. A common example of this is shared accommodation, for example with university students, where the tenancy agreement is drawn up between one of them and the owner of the flat. The student can then directly sublet the room with the tenant.

Another variation of this scheme is found in housing cooperatives, in which people own only a cooperative share instead of owning the housing unit personally. They then rent the flat themselves, and if they do not live in it, they usually rent it out to a third party, or ‘sublet’ it.

What should be included in the sublease agreement for the apartment?

Unlike a lease agreement, a sublease agreement does not have any specific rules, as the law does not say what its elements should be. If you are looking for a universal model of a sublease agreement, there is no need. This is because it always depends on the specific agreement between the tenant and the subtenant. In general, however, we recommend that both parties specify their rights and obligations in as much detail as possible to avoid misunderstandings in the future. Therefore, always remember that the sublease agreement must contain a precise definition of the subleased apartment or part of it, if you will be occupying only a room, as well as the amount of the rent and the services to be provided, including their due dates. Although it is not compulsory, a written form is more than recommended.

Advantages and disadvantages of subletting

People in a tenancy have much more rights than a lodger. However, this does not mean that subletting is not important and should be condemned. However, caution is in order. A sublease agreement is usually entered into with a tenant who is also occupying the flat and has a lease of the property with the landlord. In such a case, the consent of the owner of the apartment unit is not exactly required under the Civil Code. This can be an advantage if you are dealing with, for example, a quick and temporary housing emergency and you cannot afford to wait for the landlord’s statement when he or she is, for example, on the other side of the globe.

However, if the tenant does not live in the apartment and does not use the apartment, the landlord’s consent is needed.

On the other hand, the fact that the sublease is tied to the lease is seen as a disadvantage – if it expires, the sublease automatically expires. In addition, a sublease (unlike a lease) can be terminated without giving any reason. And if you want to register your permanent residence at the office, you must have the landlord’s consent. However, practice shows us that even residents of a flat with a classic lease agreement, as a matter of courtesy and as part of good relations with the landlord, secure the landlord’s consent to permanent residency, or at least inform the landlord about it.

Sublease agreement for non-residential premises

But subletting doesn’t have to be just about housing needs. You can also sublease non-residential premises with a lease agreement. However, according to the New Civil Code, we no longer use the term non-residential premises itself, but we talk about the lease or sublease of premises used for business purposes. Thus, it is a space or a room, the purpose of which is to carry out a business activity, this space serves at least predominantly for business, regardless of the purpose of the lease or sublease expressed in the contract.

Take care of the owner and the tenant of the flat

Trust but verify. Although you and the tenant may have a friendship, or even be related and are moving into a roommate’s apartment together, ask to see the lease. While neither the tenant nor the landlord is legally obliged to show you the lease, we recommend that you 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.

Sublease agreement for a condominium

As we indicated in the introduction, a tenant cannot offer a flat or part of a flat to someone for subletting in all circumstances without the landlord’s consent. The condition is always that the tenant himself permanently occupies the flat. This is the only way he is entitled to sublet the apartment without having to obtain the owner’s consent. This is particularly important to bear in mind in the case of cooperative flats. If you are a shareholder in a housing association but do not live in the flat and are thinking of renting it out, first of all find out what the statutes of your association say. You may be surprised and have the right to sublet the flat right in the statutes, otherwise you will need to seek approval from the co-operative’s statutory bodies.

Beware of landlord tricks

Sometimes there is a tactic among landlords to formally sublet the flat to a relative, who then sublets the flat to a third party. The purpose is precisely to limit the rights of the subtenant by the landlord, who may have had a bad experience with the tenant in the past. He may have had a non-paying tenant occupying his flat, but he had no choice but to respect the tenant’s legal rights. Thus, if the landlord had a mortgage on the flat, he had to pay the instalments without amortising them with the rental income.

Still, if a landlord offers you a sublet, beware. This is generally not a recommended solution as it is essentially a way around the law, even though it may seem understandable on the landlord’s part. There are other ways to deal with the situation to ensure that the landlord is actually moving a reliable and paying tenant into the apartment. You can always arrange a sufficiently high security deposit, good insurance for the apartment or a notarial deed with an enforceable clause for future possible debts. This is, after all, a common practice of towns and municipalities that rent out flats in their ownership to citizens. They often sign the notarial deed together with the lease contract.

Summing up

Enter into a sublease if you will be sharing the apartment with a tenant who already has a valid lease with the landlord. Always find out about this tenancy agreement or ask to see it. Also find out information about the landlord. A sublet agreement must also always address living in a condominium if it is rented to you as a third party. You will always need to get the landlord’s or letting agent’s consent to register to live permanently at the property address.