Q: I am a tenant of a single-family house, and I’d like to sublet one of the bedrooms. My landlord is against it, pointing to a clause in our lease that says, “Tenant may not sublet the premises or assign the lease without landlord’s permission.” But I’m not subletting the whole house, only one room. Do I have the right to do this?
A: You may well have the right to sublet that bedroom, the result of your landlord’s simple and (as far as his interests are concerned) narrow lease clause.
Short and simple anti-subletting and assigning clauses like this are common. Perhaps landlords and their lawyers are thinking that the prohibition is wide because the rule appears all-encompassing. Fortunately for you, this is not necessarily the case.
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A court may well side with you, finding that if the landlord meant to include partial subletting as something for which you’d need to get permission, he could have included this in the clause. The rule behind this approach is a universal legal axiom which holds that the person who writes the document has the opportunity to make its terms — particularly those that benefit the drafter — clear and comprehensive. If the drafter fails to do so, he takes the consequences — the lack of clarity will be resolved in the other party’s favor.
The drafter can’t later say, “Well, I meant to include that, of course!” In your case, a judge might conclude that if the landlord wanted to include partial sublets, he could have written, “may not sublet all or part of the premises.”
Partial sublets are just one example of the unintended consequences of an overly simple assignment and sublease clause. Some courts have held that once a landlord consents to an assignment, it waives its right to insist that the tenant obtain consent for future assignments. That problem can be averted by writing the clause to say that one instance of consent will not cancel the tenant’s duty to obtain consent for future assignments.
One more surprising outcome of a simple assignment and sublease clause, seen most often in commercial leases, concerns the consequences to the lease when the tenant merges with another entity, sells its assets to a third party, or transfers all of its stock to a third party. In any of these transactions, the lease can go along with the transfer or sale, leaving the landlord with a new tenant, perhaps one that the landlord would not have chosen to rent to.
The landlord will have no grounds to object unless his assignment and sublease clause includes a change of control provision, which describes events like these as an assignment for which the tenant needs consent.
You might go back to your landlord and ask why, exactly, he’s objecting to your plan. Is he concerned that someone will be living on his property whom he has not screened? This is a legitimate concern, for both of you, and it might be a good idea to see if you can come up with a screening process that will be acceptable.
Or is he unhappy with the thought that you, as a renter, will now become a landlord — and in the position to be making money off his property? That’s a harder objection to meet, but it’s not insurmountable: Commercial landlords and tenants sometimes address it by figuring out how much profit the tenant is actually making, then splitting the profit equally between landlord and tenant. (But unless your lease has a clause mandating such a division, your landlord cannot now insist on it.)