1. When Can You Sublet
If you need to move out of your apartment temporarily and do not want to pay rent while you are gone, one option is to sublet your apartment to someone else for a specific period of time. A sublet is meant to be a temporary arrangement where a subtenant returns the apartment to the original tenant before the original tenancy ends. If you make an agreement to rent an apartment to someone else and do not plan to return, this is called an assignment. (For more information, see the section of this chapter called You Assign Your Lease.)
When you sublet your apartment, you, as the original tenant, remain responsible to the landlord for the apartment. This is why subletting can be risky. If you have a written lease, your subtenant must abide by all the terms of the lease. As the original tenant, you ultimately remain responsible for all of the terms in the lease, including the obligation to keep the place in good condition and to pay rent.19 This means that if the subtenant refuses to pay the rent, your landlord can take action against you for non-payment of rent. A subtenant may also sue you, as the original tenant, for breaches of the sublease (if you signed one) or other violations of law.20
2. How to Sublet
To sublet, you must be a tenant with a lease.21 This is one of the advantages of having a lease. If your lease does not mention or prohibit subletting, you are free to do so.22 Most leases require that a landlord give written consent before you can sublet. If this is the case, contact the landlord and try to get her written consent before subletting.
If a landlord refuses to give you written permission to sublet your apartment, there are two ways you might try to resolve this problem. Keep in mind, however, that if you decide to sublet without the landlord's permission, you risk that the landlord will try to evict you for violating your lease.
Option 1: Sublet and Pay the Rent
Often, the landlord is unaware of what the lease says, and, in many cases, does not care who is in the apartment as long as the rent comes in on time. If that is the case, you may decide to sublet the apartment and have a subtenant pay you the rent while you continue to pay the landlord directly. If the landlord does not find out about this arrangement until you move back in, she may just let it go.
Option 2: Sublet and Inform the Landlord When the Subtenant First Pays Rent
Another option is to have the subtenant pay the landlord directly and to inform the landlord of the sublet arrangement when the subtenant first pays rent. If a landlord accepts a rent check from a subtenant without writing on the check "for use and occupancy only," the landlord cannot deny the subtenant the use of the apartment.23
In addition to Options 1 and 2, to protect yourself you should have a written agreement with a subtenant that states that if the landlord does not consent to the sublet, the sublet is invalid and the subtenant must move out.24 The following is a sample sublease agreement between a tenant and a subtenant (remember to date the agreement):
The validity of this sublease agreement is subject to securing the consent of [write in landlord's name]. Should [write in tenant's name] fail to secure this consent, the sublease agreement is null and void.
When using this as a sublet option, after the subtenant signs the sublease agreement, contact the landlord and attempt to get her consent. If she immediately says "no" to the sublet, ask her why and whether she would reconsider your request. Tell her you will get back to her. Wait a few weeks and call again. If she gives her permission, ask her to send a letter putting it in writing.
If the landlord flatly refuses to allow you to sublet, send the following notice to the subtenant:
"I have been unable to secure the consent of [write in landlord's name] to the conditional sublease per agreement dated [write in date of sublease]. Therefore, the sublease agreement is null and void."
a. Does a Subtenant Have to Pay a Security Deposit
A landlord may ask a subtenant to pay a security deposit. Under the security deposit law in Massachusetts, a landlord may not collect a security deposit that is greater than one month's rent. This means that while a landlord may collect a security deposit from both a tenant and a subtenant, the total amount she collects may not exceed one month's rent. If a landlord has already collected a month's security deposit from the original tenant and then collects another month's deposit from the subtenant, she is in violation of the law.25
19 . Miller v. Prescott, 163 Mass. 12 (1895); Dunlap v. Bullard, 131 Mass. 161 (1881).
20 . Smith v. Abbott, 221 Mass. 326 (1915); Casassa v. Smith, 206 Mass. 69 (1910).
21 . Cf. Hart v. Bouton, 152 Mass. 440 (1890)
22 . Valley Oil Co. v. Barberian, 344 Mass. 759 (1962); Leitner v. Foster, 280 Mass. 128, 134 (1932).
23 . Paeff v. Hawkins-Washington Realty Co. Inc., 320 Mass. 144 (1946); see Saxeney v. Panis, 239 Mass. 207, 210 (1921). Common reservations include "Rent accepted for use and occupation only without creating any new tenancy"; "Rent accepted without waiving any rights under the lease"; and "Rent accepted, subtenant not accepted hereby."
24 . See Howland v. Town of Plymouth, 319 Mass. 321 (1946).