You need to be able to prove illegal subletting by a tenant because a sublet without your permission can be dangerous to your property. The reason here is that the original leaseholder is disregarding their lease agreement, as well as undermining the screening process you follow to approve the right renter’s application.
Your property is exposed to potential damages by a sublet tenant whose name is not written on your lease, and it could be challenging to hold them accountable for damages. Besides, the original tenant whose name is on the lease may still request their complete security deposit back.
Is proving an illegal sublet worth it for the landlord?
If the illegal subleasing is not current but a past behavior, there may be no practical difference as to proving it or not that your tenant subleased without your permission or consent.
Regarding how to prove tenant is subletting, if you catch a tenant in an active sublease without your consent on your property, you are entitled to:
- send them an initial written notice factually describing the conduct as a lease violation
- give them a deadline date to “cure” the default
A cure here is simply the violating tenant stopping the act after your notification. If the tenant acknowledges a cure, the landlord may not take any more action.
In New York, for instance, even when a tenant continues the default and does not cure, resulting in a tenancy termination and an eviction proceeding, the statute allows the tenant to cure even after losing the trial. Moreover, the tenant can’t be evicted by the landlord for a lease violation if they cure the violation even after the landlord wins.
If a tenant is currently subleasing, the landlord can bring their complaint to the attorney to prepare a Notice to Cure following the lease.
If the tenant does not cure, your local attorney can guide you on your next steps to stop the illegal subletting.
How to prove illegal subletting
Below are the simple steps you can follow to prove an illegal subletting by a tenant:
1. Review your rental agreement
First, you should review your contract agreement with the tenant and be sure it contains appropriate subletting verbiage.
Thus, if you determine that your original tenant has sublet the property without your permission, it would be considered a breach of contract.
2. Notify the original tenant
As a landlord, send a notice to your tenant informing them that they’ve violated part of the lease and that you have grounds to legally evict them if they don’t desist. This notice is typically referred to as:
- “(X) day covenant or quit notice”
- “notice to perform or quit”
- “notice to cure or quit”
Continuing with eviction proceedings is up to you if the tenant refuses to “cure”. Note that although this is a notification step in a legal eviction procedure, this tactic is usually to get an original tenant’s attention to get them to fix the broken lease or contract agreement.
3. Talk to the sublet tenant
Try to schedule an appointment to speak with the person subletting your rental. The subtenant may not have known who the original landlord is and may then be wondering “my landlord is illegally subletting to me” (where “my landlord” refers to your original tenant on the lease who is subletting to them).
Explain to the subtenant that you are the original landlord and your rental agreement does not allow subletting, thus, the sublet is illegal.
Be calm and reasonable with the subtenant, that way, you could even get to prove tenant is subletting or get further information about the event to know how you proceed.
4. Begin the legal eviction proceedings
If after notifying your violating tenant and the subtenant to “cure”, they fail to comply with your rental agreement, you may have to legally evict the tenant and subtenant. Just be careful and consider these situations so you don’t get in trouble as a landlord instead.
Note that tenant eviction can be a nightmare. The process can be challenging, including rife with:
- Working with contractors for repairs and maintenance,
- Legal proceedings
- Potential lost income
Eviction should be your last resort because it can be extremely expensive and often costs thousands of dollars and takes several weeks to complete.
Nevertheless, if you’ve had enough and your rental agreement or lease strictly prohibits subletting without your permission, you should be able to win the case.
5. Let it be
Since an eviction process can be lengthy and expensive, consider letting it be, especially if the subtenant has no problem with neighbors. You can have your original tenant and subtenant come to an agreement.
Just make sure to add an addendum to the rental agreement, or have the subtenant follow your screening process for you to add them to your original lease.
It’s necessary to always include a clause in your rental agreement about subletting that either allows or forbids subletting. That should be explicitly written and described in the lease.
How to report illegal subletting
To report illegal subletting, just notify the management office. You can send a certified letter to the leasing office if you have their address.
If a lease agreement does not specifically prohibit subletting, it can be tougher to resolve the case. Consider referring to your state law for a legal remedy, and follow other options to resolve the dispute, including calling your local housing authority for assistance.
Your next move should be to update the lease agreement. The update may be made to the rental agreement at the landlord’s discretion if a clause is added to update the lease agreement. Send the notice to your tenants about changes in the terms of the lease agreements. Usually, you’d need up to 30 days’ notice for the change to legally become effective, which provides your tenants time to comply.
What happens if you get caught illegally subletting?
If you get caught illegally subletting without the landlord’s consent/permission and the lease clearly prohibits subletting, a tenant can be evicted in most states and cities. In some cases, the landlord may issue a notification for the tenant to “cure” before taking up legal action.
If a tenant is subletting without your permission, the legal remedies depend on your state and lease terms. Technically, irrespective of your lease, you may have more or fewer rights (depending on the state) over your violating tenant. Make sure to avoid the problem altogether by explicitly prohibiting subletting in your lease.