Can tenant collect from sublessee if having one violates lease?

Question: When I lost my job recently I realized I couldn’t continue to pay the rent on my apartment. I didn’t want to risk eviction or damages for breaking my lease, so I rented one of my bedrooms to a former co-worker. I knew at the time that my lease prohibited subletting without the owner’s permission, but I was desperate.

This guy stayed a couple of months and then moved out without any warning and without paying the last month’s rent. I wrote to him demanding the money he owed me, but he replied that I couldn’t collect rent from him because it would have been a violation of my lease. Am I out of luck?

Answer: We think you are still entitled to collect the unpaid rent owed by your former subtenant.

When you sublease, the legal “landlord-tenant” relationship is between you and the subtenant. Your true landlord is not a party to this relationship. The fact that your subtenant benefited from living in your apartment with your permission allows you to collect the rent he owes pursuant to the terms of your agreement with him.

You haven’t indicated whether that agreement between you and the subtenant was written or oral, but even if it was oral it is enforceable, although you would have to prove the specific terms to a judge if the case goes to court. Your subtenant is not allowed to assert your violation of your lease as a defense if you take him to Small Claims Court, because the lease is a separate legal agreement between you and your own landlord.

Assuming your decision to sublet violates your lease, the nature of the violation would be one of the contract between you and your landlord. Only your landlord is entitled to seek a remedy for that violation.

Your sublease is not a violation of state law or other public policy, such as an agreement to engage in criminal activity, that a court or other outside body would refuse to enforce regardless of the parties involved.

In terms of your own jeopardy, if the subtenant was still living in your unit, your landlord could have remedied your violation by serving a three-day notice to remove the “illegal” subtenant, if the “no sublet” language was sufficiently clear to apply to your specific arrangement. The landlord could have then pursued an eviction case against you if you failed to remove. Since your subtenant is already gone, you are not currently in danger of eviction, regardless of whether the lease prohibition would have applied to your arrangement.

Eichner is director of Housing Counseling Programs for Project Sentinel, a Bay Area nonprofit. Send questions to [email protected].