ASSIGNING & SUBLETTING RENTAL UNITS

There are times when a tenant may need to move out of their home, either temporarily or permanently before the end of their lease.  In this situation, a tenant may want someone else to take over their lease, either temporarily or permanently.

Permanently Moving Out (Assignment of the Rental Unit):

If the tenant wants someone else to take over their lease permanently, they may consider assigning their rental unit to someone else.  If they have someone in mind whom they will assign their lease to, that is referred to as a “specific request” and the person who will be taking over the rental unit is referred to as “the potential assignee”.  If the tenant does not have anyone particular in mind, it is referred to as a “general request”. The tenant may assign their rental unit to another person if they obtain the landlord’s consent.

Whether the request to assign the rental unit is a general request or a specific request, the landlord may either consent to the assignment of the rental unit or they may refuse to consent to the assignment of the rental unit.  However, in the case of a “specific request”, the landlord may also agree to the assignment of the rental unit to the potential assignee, or they may consent to the assignment of the rental unit but may refuse to consent to the assignment to the specific assignee.

While the landlord may or may not consent to the assignment (either generally or to a specific person), the landlord may not arbitrarily or unreasonably refuse to consent to the assignment.

If the tenant asks the landlord to consent to the assignment of the rental unit and the landlord either refuses to consent to the assignment or does not respond (one way or the other) within seven days after the request is made, the tenant may give the landlord a notice of termination of the tenancy within 30 days after the date the request is made.

Consequences of Assignment:

If the rental unit is assigned to another person, the terms of the current tenancy agreement continue, with only the tenant changing (there is no new rental agreement); therefore, the landlord cannot increase the rent.  The assignee permanently takes over the tenancy agreement (this person is now the “assignee”), and the former tenant has no right to return later and move back into the rental unit.  

The former tenant remains responsible to the landlord for their responsibilities only for the period prior to the assignment, and the assignee is responsible to the landlord for the assignee’s responsibilities after the date of the assignment.  Furthermore, the assignee may enforce any of their rights and any of the landlord’s obligations either under the tenancy agreement or under the Residential Tenancy Act, as long as the obligation relates to the period after the assignment.

The landlord remains responsible to the former tenant for any of the landlord’s obligations under the tenancy agreement or under the Residential Tenancy Act, for the period before the assignment. The landlord also becomes responsible to the assignee for any of the landlord’s obligation under the tenancy agreement or under the Residential Tenancy Act for the period after the assignment.

Temporarily Moving Out (Subletting the Rental Unit):

If the tenant wants someone else to take over their lease temporarily, and the tenant plans on returning to live in the rental unit prior to the end of the tenancy agreement, they would need to sublet their rental unit to someone else. The tenant may sublet their rental unit to another person if they obtain the landlord’s consent.

As is the situation with assigning a rental unit, a landlord may not arbitrarily or unreasonably refuse to consent to the subletting of a rental unit.

Consequences of Subletting:

If a tenant sublets a rental unit to another person (referred to as the “subtenant”), the subtenant rents the rental unit for a period no longer than the term of the original lease. It is the original tenant (not the subtenant) who remains entitled to the benefits, and also remains responsible for the breaches of the tenant’s obligations under the tenancy agreement or under the Residential Tenancy Act. The subtenant is entitled to the benefits under the subletting agreement or under the Residential Tenancy Act, and is responsible for their obligations under the subletting agreement or under the Residential Tenancy Act. In this scenario, the original tenant becomes the subtenant’s landlord while the original tenant remains the landlord’s tenant.  Thus, there really is no agreement between the subtenant and the landlord.  The original landlord/tenant relationship remains.  The tenant is still responsible for all of their obligations under the tenancy agreement – including paying the rent.

It is important to note that the subtenancy is secondary to the original tenancy.  If, the original tenancy is terminated, the subtenancy will also be terminated.

If a tenant is renting a home and wants to turn over the rental unit to someone else either temporarily or permanently, they can do so, if they obtain the landlord’s consent. The tenant can either assign the rental unit to another person, (an assignee), in which case the tenant moves out of the rental unit permanently, and the assignee takes over all of the obligations and is entitled to all of the benefits under the tenancy agreement.  The tenancy agreement continues with the main difference that the agreement is now between the landlord and the assignee.  

If the tenant only plans on moving out for a temporary period and plans to return to the rental unit prior to the end of the tenancy agreement, with the landlord’s consent, the tenant can sublet the rental unit to another person (subtenant).  The rental agreement remains unchanged; the tenant remains responsible to the landlord for all of the tenant’s obligations and the landlord remains responsible to the tenant for all of the landlord’s obligations.

In either case, the landlord cannot arbitrarily or unreasonable deny consent; otherwise, the tenant can give a notice of termination of the tenancy within 30 days after the request is made.

Subleases and assignments  are a common legal issue faced by Landlords and Tenants alike. It is important to always consult with a lawyer when you are unsure.

Call the Real Estate Law Experts at Frank Feldman Law Today!

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