A tenant with a lease is responsible for paying the rent up-to the end of the lease. Tenants who want to move out before the end of the lease, normally have the option to sublet or assign their unit, which means the new tenant will be responsible to pay rent for the remaining months of the lease.
If the tenant only wants to move out temporarily they can arrange to sublet their unit. Subletting occurs when a tenant rents out their unit to another person, called a subtenant, for a period that is less than the length of the lease. If a tenant rents on a month-to-month basis, they can only sublet the unit for less than one month and not for any longer period, or the tenant and the subtenant may lose their rights to the unit. With a sublet, the original tenant is responsible for all the terms under the lease and must collect the rent from the subtenant, and ensure it is paid to the landlord.
If a tenant wants to sublet their unit, they require the landlord’s written approval. Landlords are not allowed to unreasonably refuse a request for a sublet. This means that if a landlord decides to refuse a subtenant, he or she must have a good reason for doing so. Further, if the landlord refuses to allow the tenant to sublet the unit, or does not reply to the request within seven days, the tenant can apply to the Landlord and Tenant Board to determine if the sublease should be allowed.
Assigning a lease: transferring it to someone new
If a tenant wants to move out before the lease expires and does not plan to return, he or she can assign the lease to another person, who will then become the tenant. Assigning a lease transfers all the tenant’s rights and obligations to another person. The new tenant, called the assignee, will be required to pay the same rent that the original tenant was paying, and the terms of the original lease will apply.
If a tenant wants to assign a lease, he or she is first required to make a written request for the landlord’s approval. As with a sublet, the landlord cannot unreasonably refuse consent to an assignment. If the landlord refuses or does not reply within seven days of the tenant’s request, the tenant has two choices: end the lease or apply to the Board to approve the assignment. If the tenants want to end the lease, they have 30 days from the day the assignment request was made to give notice to the landlord. The notice must be 30 days before the tenant will move, which is normally the last day of the month.
Subletting or assigning a lease without the landlord’s permission
If a tenant sublets or assigns their unit without first getting consent from the landlord, it is considered an unauthorized assignment or sublet. When this happens, a landlord can file an application with the Board to evict both the tenant and the unauthorized occupant. However, if the landlord fails to file the application within 60 days of discovering the unauthorized occupant, the unauthorized occupant will become a tenant.
To apply to the Board to have a sublet or assignment approved, tenants must submit the appropriate form together with a small application fee. A copy of these forms must then be delivered to the landlord. To obtain forms or for additional information on sublets and assignments, visit the Landlord and Tenant Board website.
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For legal advice on subletting or assigning a lease, and assistance with residential tenancies and applications to the Landlord and Tenant Board, contact our preferred landlord and tenant paralegals, D&D Associates .
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Subletting / Assignment
Roommates / Shared Accommodation
Living with a Roommate
The Residential Tenancies Actdoes not address the rights and obligations that tenants have to one another. It is common for roommates to enter into roommate agreements so that each tenant knows their rights and obligations.
A roommate agreement can include things like:
- how rent is to be split and paid to the landlord;
- how bills will be split;
- how the rental property will be shared;
- when notice to move out must be given to the other roommate(s);
- how the security deposit will be handled if one roommate leaves; and
- how chores will be split in the rental property.
Roommates can add other terms as long as all roommates agree on them. A sample roommate agreement can be downloaded here.
For further information, see our tip sheet on Shared Accommodation and the LawNow article Co-Tenants and Co-Responsibilities.
Living with the Landlord
If a tenant shares living space with the landlord, then the Residential Tenancies Act does not apply. A common example of when the Residential Tenancies Act does not apply is when a tenant rents a room in the landlord’s home and shares the kitchen and living room with the landlord.
Since the Residential Tenancies Act does not apply, if the tenant did not pay rent one month, the landlord is under no obligation to give the tenant a 14-day notice to end the tenancy. The landlord could ask the tenant to leave immediately for failing to pay rent. Tenants who live with their landlords do not have the same protections as tenants who are covered by the Residential Tenancies Act.
If the landlord and tenant share living space, it is a very good idea to have a written contract setting out the rules that both the landlord and tenant must follow to provide some basic protections. For tenants, a sample “Living with Your Landlord Agreement” can be downloaded here.
Roommates – Frequently Asked Questions
How many people can live in a house or apartment?
Does each roommate need to sign the lease?
If a roommate has not signed the lease, are they still responsible for conditions in the lease like shoveling snow?
If a roommate moves out, does the landlord have to return part of the security deposit?
NEW One of my roommates is moving out and we don’t have anyone new to move in right away. Is he still responsible for his share of the rent?
NEW I live with my landlord and we keep arguing about everything. What can I do?
NEW What can I do if I have a problem with my roommate?
When a rental property is sublet, the original tenant moves out of the rental property and a new tenant (the subtenant) moves in to take his or her place but the original lease stays in place. Often, the original tenant expects to move back into the unit. For example, students commonly sublet their rental units for the summer from May to August with plans to return in September.
The original tenant is still legally responsible for all of the obligations under the lease and under the Residential Tenancies Act. For example, if the new tenant fails to pay rent, the landlord can collect unpaid rent from the original tenant. The new tenant who sublets is also responsible for the obligations of the lease.
Before subletting, the original tenant must receive consent from the landlord to sublet the property. The landlord can only refuse to consent to the sublet if there are reasonable grounds to refuse. For example, if the prospective tenant does not pass a credit check, the landlord may refuse to sublet. If the landlord refuses to sublet, the original tenant must receive written reasons for the refusal within 14 days. If the landlord does not respond to a request to sublet within 14 days, the law says the tenant can assume the landlord consents to the request. The landlord cannot charge the tenant a fee for consenting to the sublet.
The original tenant may want to enter into a fixed term agreement with the tenant who sublets the property. The agreement should include all of the obligations from the original lease, which ensures that the new tenant is aware of all of those obligations. The new tenant can either pay rent to the original tenant or, if the landlord consents, pay the landlord directly.
Assignment is when a tenant finds someone to take over his or her lease agreement. It is a good option if a tenant does not plan on returning to the property.
If a tenant finds someone who wants to take over the lease agreement, the tenant must get written permission from the landlord to assign the lease. A landlord can only refuse the request to assign the lease if there are reasonable grounds (i.e. the new tenant refuses to fill out an application form or cannot pay the rent). If the landlord refuses the request, written reasons for the refusal must be provided to the tenant.
A landlord must respond to the request to assign within 14 days. If the tenant does not hear from the landlord within 14 days, the law says the tenant can assume the landlord consents to the request. The landlord cannot charge the tenant a fee for consenting to the assignment
If a tenant gets permission to assign the lease, a release should be signed between the landlord and tenant. A release is a new agreement that discharges the tenant from all of his or her obligations to the landlord. For example, a signed release would protect the tenant from having to pay rent if the new tenant didn’t pay it in the future.
The benefit of assignment is that the tenant is no longer responsible for anything to do with the rental unit once the lease has been assigned and a release has been signed.