Assigning a Lease or Subletting

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It’s the end of August and you’ve just seen a great loft you would like to buy and move into as soon as possible. But you just signed an apartment lease a month ago and you cannot legally cancel it. What should you do? How can you avoid paying both the rent and a mortgage? Should you sublet your apartment or assign your lease?
 
In this article, Éducaloi explains the differences between subletting and assigning a lease, the steps to follow and the responsibilities you might be left with.

What is the difference between subletting and assigning a lease?

An assignment happens when a tenant permanently leaves a rental unit during the course of the lease. The tenant gives up all rights as a tenant and has no further responsibilities toward the landlord.

Subletting, on the other hand, can be a temporary arrangement. By subletting your apartment, you preserve your right of occupancy: when the sublet is finished, you have the right to return. But when you sublet, you also assume some responsibilities.

Who is involved in assigning and subletting?

When a lease is assigned, three people are involved:

  • the tenant assigning the lease
  • the person taking over the lease
  • the landlord

When there is a sublet, these people are involved:

  • the person subletting a rental unit
  • the person to whom the unit is sublet (the subtenant)
  • the landlord

What does an assignment or sublet mean for the people involved?

When a lease is assigned, the person taking over the lease assumes all the rights and responsibilities of a tenant toward the landlord.

The original tenant who assigned the lease has no further rights or responsibilities toward the landlord.

In a sublet, the person to whom you sublet - the subtenant - has all the rights of a tenant, except the right of “occupancy”. This means that as the original tenant, you can return at the end of the sublease.

If you are the person subletting to a subtenant, you are still responsible for the lease and are considered a tenant with all the rights and responsibilities that involves. If the person you sublet to does not pay the rent, you are responsible for paying it.

Also, when you sublet, you assume the responsibilities of a landlord toward the subtenant.

Can I assign my lease or sublet at any time?

No. The law says that there are three situations in which you cannot assign your lease or sublet:

  • You are a student renting housing in an educational institution.
  • You are a tenant in low-rent housing.
  • Your rental unit is the main residence of your family (the place where your family carries on its daily activities).

Regarding this last point, when your rental housing is the family residence, you can only assign or sublet the lease if your spouse agrees.

For more information, on this, see our article on protection for family residences in the Families and Couples section of our website.

What steps do I have to take to assign my lease or sublet?

If you are in a situation that lets you assign your lease or sublet (see the previous question), you must send your landlord a notice of assignment or sublet, once you have found a potential tenant.

This notice must include the name and address of the potential tenant and the projected date for the assignment or sublet. You must send this notice to the landlord’s address as it appears on your lease and it must be written in the same language (French, English, etc.) as the lease.

The landlord must reply within 15 of getting your notice. The landlord cannot refuse the assignment or sublet without a good reason: proposed tenant’s inability to pay the rent, problematic behavior of this tenant, etc. This is the case even if your lease says the landlord can refuse for other reasons. If the landlord does not respond to your notice within the 15-day period, the law considers this as an acceptance of your request to assign or sublet. 

If you do not give your notice in the proper way, it usually does not have legal value. It only has legal value in one case: you prove to the Régie du logement (rental board) that the landlord did not suffer because the notice did not respect the law.

You can get a model notice on the Régie du logement website or by visiting their offices.

What can I do if my landlord refuses my request to sublet or assign the lease?

You can ask the Régie du logement (rental board) to force your landlord to accept the assignment or sublet if he has no good reason for refusing.

Keep in mind, though, that there is no point making a complaint to the Régie of you are in one of the situations when assigning or subletting is not allowed. Again, these situations are as follows:

  • You are a student renting housing in an educational institution.
  • You are a tenant in low-rent housing.
  • Your rental housing is your principal family residence and you do not have written permission from your spouse to assign or sublet it.

For more information on requests to the Régie du logement, see our article The Régie du logement.

What happens to the subtenant when a lease comes up for renewal?

When the lease is up, the original tenant has the option of returning.

But to be able to return, the original tenant, or the landlord, must give the subtenant 10-days-notice to leave. If this notice is not sent, the subtenant can stay in the dwelling and strike a new lease with the landlord.

What obligations does the original tenant have toward the subtenant?

A sublessor has several obligations toward the subtenant:

  • deliver the unit in good and clean condition
  • make sure the subtenant has peaceful enjoyment of the rental unit

Can a landlord cancel a sublet?

Yes. A landlord can ask to cancel a sublet if the subtenant causes serious inconvenience o the landlord or the occupants of the building. This could be the case, for example, if the subtenant pays the rent late or causes so much noise that other tenants complain.

A landlord in this situation can request not only the cancellation of the lease, but also compensation (money) for the harm caused.

Important !
This article explains in a general way the law that applies in Quebec. This article is not a legal opinion or legal advice. To find out the specific rules for your situation, consult a lawyer or notary.