Disputes between and landlords and tenants often arise regarding assignment of a lease or subletting of the premises.
Difference Between Assignment and Subletting
The difference between an assignment of the lease and subletting of the premises is that with an assignment, the entire leasehold is transferred (i.e. the entire premises for the entire remaining term of the lease), whereas with a sublet, less than the entire leasehold is transferred.
Restrictions on Transfer
A landlord and tenant can validly agree to restrict transferability of leasehold interests by way of assignment, sublease, encumbrance or other voluntary or involuntary transfer. In most lease disputes relating to assignment or subletting, the tenant has assigned the lease or sublet the premises without the landlord’s prior written consent as required by a written lease or rental agreement. Under California law, when this situation arises, the landlord is generally entitled to terminate the tenancy upon three days prior written notice.
Sample Residential Lease Provision Prohibiting Assignment or Subletting
Tenant shall not sublet all or any portion of the Premises, or assign this Lease or any interest therein, without the prior written consent of Landlord which consent may be withheld, conditioned, or delayed in Landlord’s sole and absolute discretion. Unless such consent is obtained, any assignment, transfer or subletting of the Premises or this Lease or tenancy, by voluntary act of Tenant, operation of law or otherwise, shall constitute a default by Tenant under this Lease. Any proposed assignee, transferee, or subtenant shall submit to Landlord an application and credit information for Landlord’s approval and, if approved, sign a separate written agreement with Landlord and Tenant. Landlord’s consent to any one assignment, transfer or sublease, shall not be construed as consent to any subsequent assignment, transfer, or sublease and does not release Tenant of Tenant’s obligations under this Lease. Additionally, Tenant and any other occupants of the Premises shall not cause or permit the Premises, or any part of the Premises, to be offered for short-term rental including, without limitation, advertising any part of the Premises on Airbnb, VRBO, Craigslist, Couchsurfing, HomeAway, VacationRental, TripAdvisor, FlipKey or any other advertising or listing service.