Published on: 12 November 2021
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What are the risks of a sublet?
Subletting is often practiced in the student community. Be careful to respect the legislation and not to hide anything in this area from your landlord.
What are the risks of a sublet?
Is the apartment you are renting large enough to accommodate another person? Do you think that sharing the rental costs will be more beneficial for your finances? Are you going on vacation and would like to not pay rent when you are not occupying the apartment? In short, you would like to sublet your accommodation...
Subletting is a fairly widespread practice in France, especially in student circles. But it is not always well regarded in the real estate world because it can sometimes border on illegality. You must therefore do things very carefully with two basic rules: be well informed about the laws in the field and be clear with your landlord.
What is a sublet?
A sublet is defined as such when the tenant himself rents the accommodation to another person. There are two forms of subletting:
- the one where the main tenant is absent for several weeks and offers a third party to occupy the vacant accommodation,
- one where the main tenant shares his living space with another tenant, in the form of a shared apartment.
The concept of subletting is established when the sub-tenant regularly gives money to the main tenant to benefit from his accommodation. It is therefore necessary that a sublease contract be established between the tenant and the sub-tenant, which will be brought to the attention of the lessor.
The primary tenant collects the money collected from the sublet and continues to pay the rent owed to the landlord. If the sub-tenant were to pay directly to the owner, this sublet turns into a shared apartment, which is no longer the same thing. There is often confusion between the two terms and it is recommended that you understand the differences.
We are not talking about subletting if you put someone in your home for free. As a reminder, the law requires that you occupy a home for at least eight months out of twelve so that you are considered as the main tenant.
If practiced in accordance with the law, subletting has many advantages:
- the primary tenant amortizes the cost of his or her rent,
- the primary tenant can go away for a few weeks without having to pay for a unit that he or she does not occupy (and can leave its belongings there)
- the dwelling remains occupied in case of absence, which reduces the risks of burglary
- the landlord continues to receive rent even during the absence of the tenant
- the sub-tenant has a temporary solution in case of emergency,
- the sub-tenant can benefit from APL and other housing aids if a rental contract has been established with the main tenant, with the agreement of the lessor.
Is subletting legal ?
Subletting is a perfectly legal practice and is governed by the law. Article 8 of the law of July 6, 1989 aimed at improving rental relations states: "The tenant may not transfer the rental contract, nor sublet the accommodation except with the written agreement of the lessor, including the price of the rent. To put it more positively: a sublet must be done with the written agreement of the lessor. The landlord has the right to set the rent for the subtenant.
If your subletting is not reported to your landlord, the landlord has the right to terminate your lease and end the tenancy. He or she may also seek damages. The wisest thing to do in any situation is to inform the landlord and not to do anything without the landlord's consent. Many conflicts can be avoided through dialogue.
Of course, the landlord is free to accept or refuse a sublet. Generally, unless he is a real estate professional, the lessor is not necessarily familiar with the legislation on this point. He is therefore afraid of falling into illegality, or at least into inextricable complications.
So if you want to make a subletting request to your landlord, make sure you know the laws. You can bring them up to the landlord and you will reassure him about the legality of the approach. Remind him that subletting is legal if he agrees to it in writing and if he sets the amount of the sublet himself. The amount of the sublease must remain proportional to what he grants to the main tenant. All that remains to be done is to add a clause to your rental agreement.
Subletting is risky for the tenant
Subletting presents risks for the tenant if it is established without the agreement of the landlord. First, there is the purely legal aspect that allows the landlord to evict you and your sub-tenant when he discovers the pot-au-rose.
Undeclared subletting can also turn sour if the subletter decides not to play by the rules anymore. It will be difficult for you to sue the subtenant if he or she decides not to pay his or her share of the rent, or if he or she commits damage to the apartment. The subletter can also leave the sublet overnight, without notice and without paying what you are owed. In many cases, in an illegal situation, the subtenant is in a favorable position. He or she is in a position to exercise leverage by threatening to make a statement, for example.
This is why it is important to make sure that the subletting is done legally, by obtaining a written agreement from the lessor. The rules are defined in writing, as is the amount of the sublease. In many cases, the lessor does not want to complicate his life with several half rents. He will much prefer to receive one full rent and leave the calculations to the main tenant, as long as everything is done in accordance with the law.
Landlords: how to indicate an illegal sublet?
It is difficult for a landlord to notice an illegal sublet. It is not forbidden for a tenant to receive people in his apartment, even for several days or weeks. The landlord does not even have to intervene if he notices that a spouse or family member has moved into the rental. The spouse or family member can even legally add his or her name to the mailbox or intercom system.
As long as the landlord does not have proof that the sharing of his or her dwelling is for profit, he or she cannot take action. Even if there is a sharing of expenses between the occupants, the law does not consider it to be rent in the strict sense. We are therefore not in the case of a sublease.
In the case where he notices that the accommodation is durably occupied by another person than the tenant with whom he had established and signed the rental contract, the owner can make a bailiff intervene. The bailiff will be able to establish the legality or not of the subletting.
What you should know about subletting
In conclusion, it is perfectly possible to rent your home to a sub-tenant. You must remember that subletting is not illegal, but it is subject to a very strict obligation: it must be carried out with the written agreement of the owner.