Subtenant: An Overview
Subtenancy is not a well-known concept, even in a border town like El Paso. While most people have heard of the term tenant (the person renting an apartment and living there), and may have heard of landlord (the property owner), subtenancy is a term that may be completely new to some people.
"Subtenant" refers to the person or persons that share space at the apartment with the tenant. Put another way, while a lease between a tenant and a landlord could run on for one year, a lease between a subtenant and a tenant could just be for two months. Subtenants can be roommates who contribute to the monthly rent, or they can be boyfriends and husbands who come and go. However, the distinction is important when a landlord starts to evict. This blog post explores a very special rule concerning subtenants.
Most landlords like things in writing. Think about it . Suppose your landlord had promised to fix the shower head in two days if it was leaking. If you did not have this promise in writing, how could you prove that the promise was made? So yes, a written agreement to give two days to fix a leaky shower is better than only a verbal promise. Most of the time, that goes for leases, too. Written leases are better than verbal leases. A written lease will help to set down all of the rules and regulations up front and in an accurate manner. So when we talk about written leases and subleases, the following distinction comes to mind.
A subtenant does not need a written agreement to establish subtenancy. Most of the time, subtenancy is established by the actions of the parties. Unlike a normal lease with a tenant, no signature is required. Instead, a subtenant should look to actions to show subtenancy.
Oral Lease Arrangement in Subtenancy
The legal validity of an oral agreement varies by jurisdiction. Many states in the U.S. do not require a written sublease, and oral agreements are legally binding in these jurisdictions. However, as is typically the case across many areas of the law, oral agreements are not always enforceable. For one, proving someone agreed to something is a difficult proposition without a physical record of their assent to its terms. In addition, some contracts, such as those related to real estate, are only required in documentation under some state laws or federal statute.
To reduce the risk of subtenant rights being harder to prove, it may still be advisable to have a written contract. It will be harder for a landlord to avoid their responsibilities and liabilities as a sublessor if there is a physical record of being required to fulfill them. An oral agreement can be used to grant subtenant rights but it may not be enough to guarantee them. Oral agreements should be treated with caution because it can be difficult to prove oral understanding in court.
Rights of Subtenants without Contracts
Even if there is no written agreement, some courts have recognized that subtenants are entitled to a habitable living environment. Specifically, just as a landlord must provide a tenant with premises that are suitable for human habitation (i.e., compliant with the warranty of habitability), a subtenant is also entitled to such housing conditions. Moreover, some courts have ruled that a subtenant may have an implied warranty of habitability for which a subtenant can sue even if the subtenant does not have a written lease. It is well established that a landlord cannot evict his/her tenant without cause. Accordingly, a subtenant cannot be evicted on the basis of color, race, creed, or similar attributes, unless the landlord can show that such actions were not discriminatory in nature.
Filing to Prove Tenancy without a Written Contract
A tenant without a documentary written agreement can still be a tenant, or at least prove the right to occupy the unit without a written agreement. Tenancy can be proved by the following:
- Mail that’s addressed to the subtenant, at the property: A receipt for the rent paid and directed to the subtenant at the rental unit can be used as evidence of presence and occupancy in the unit rather than as anything that constitutes a notice (although a legal notice for termination of rental aggravates the situation). Also, bills that are sent to the rental address of the subtenant would constitute a presumption that the subtenant is residing there.
- Witness testimony from an acquaintance of the main tenant that would confirm that the subtenant actually resides there in the rental unit.
- Check in from the main occupant (the primary tenant) or the landlord/lessor. The fact of the matter is that tenants are renting the unit from the primary tenant and not from the rental company or the landlord, and so they do have a legal right to the occupancy of the rental unit.
Risks Involved in Subtenancy without a Written Contract
Unfortunately, there are many potential risks and disadvantages to being a subtenant without even a written agreement. First and foremost, if the subtenant walks in and out of the apartment door carrying a suitcase (whether to leave or just going up an down the three flights of stairs) with faucets and water running, the landlord can pass by, see what is going on and demand that the sublease or subtenancy be cancelled or he will evict all parties, including the subtenant. And since the landlord can technically evict the main tenant and/or the subtenant at this point, the subtenant will have no recourse.
Also, if rent is due and owing and the main tenant refuses to pay it, he can insist that the landlord evict both tenants. And then the house of cards falls apart as the subtenant has nowhere to live , the landlord has no way of assessing damages which is equivalent to one year of rent that is owed by both parties and any other remedies which his attorneys fees clause might stipulate. And if the tenant refuses to leave after two weeks and the landlord instigates a summary proceeding under the Landlord-Tenant Law (RPAPL), the subtenant will find himself in court fighting a good fight with no formal standing, because the main tenant has already been evicted, and now the subtenant has a $1,000 security deposit sorely needed.
Also, if the main tenant walks or vacates the premises within the two week notice that the landlord gives him to vacate his apartment, the subtenant is equally subject to eviction because the landlord is never going to abandon the eviction process unless the main tenant agrees to the cancellation. In fact, ideally, the subtenant should be the first client to call me and ask for my legal expertise in saving him.
So, while the risks of entering a subtenant situation may appear harmless at first, the reality is that this practice is full of pitfalls for subtenants.
How to Protect a Subtenant’s Rights
Steps to Protect Subtenant Rights Without a Written Agreement
The fact that a subtenant does not possess a written sublet agreement does not leave them completely unprotected. The subtenant’s best defense is being proactive. Chances are that their lessor will try to reject the sublease with the landlord on the ground that it was not permitted under the lease or not permissible under local law. This means the subtenant should take affirmative steps to be able to defend against the lessor’s position. These steps are as follows:
Get it in writing. The best action a subtenant can take to protect its rights is to have a written agreement with the tenant and an acknowledgement from the lessor. Yes, this means negotiating sublease terms and conditions. It also means talking with the landlord to determine whether their consent is required for subleasing. But, if the tenant is willing to do this, the subtenant should absolutely insist on entering into a written agreement that provides for termination on the termination of the tenant’s lease and requires any landlord consent.
If there is no written agreement, the next best thing is for the tenant to keep an airtight log of payments and communications regarding the sublease. The tenant should pay the rent by check and make sure that the rent is not only identified as rent, but also record the payments as rent in the tenant’s accounting system or records. Further, the tenant should keep a log of all emails, letters and telephone calls with the landlord, the tenant and the subtenant. A note as to the topic of the conversation and who is involved is helpful, particularly when there is any resistance from the landlord or the tenant.
Subtenant Legal Assistance
In some cases, a subtenant may need to enlist the help of a lawyer or tenant advocacy group to assert their rights. For example, if a landlord is withholding a security deposit without cause, a subtenant may wish to take legal action to get their money back. Additionally, if a subtenant has experienced harassment or discrimination from their landlord, a lawyer can help them to investigate and possibly file a complaint. A subtenant may also need to seek legal help if they are facing eviction without proper notification . A lawyer can help subtenants understand the eviction process and identify any illegal or unfair practices by their landlord that can be challenged in court. If a subtenant faces retaliation from a landlord for asserting their rights, a lawyer can also provide assistance in addressing unfair treatment. To find a lawyer or tenant advocacy group, subtenants can turn to local bar associations, legal aid societies or other nonprofit organizations dedicated to providing legal services to tenants.
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