Legally Subletting in California

*****Disclaimer: This is not legal advice and is for educational purposes only. This does not create an attorney-client privilege.

Rodriguez Law Group, Inc. February 24, 2022

With how expensive housing has become in California, it is very natural and common that you might wonder about what your options are to make rent payments more manageable. One obvious solution might be to split that rent payment among more people, aka subletting or subleasing your residence. While this sounds like a great idea in theory, the reality is that California has some strict laws when it comes to subleasing. California law requires that you get written consent from your landlord prior to subletting. And if your lease explicitly prohibits subletting, you are out of luck. There is no way in California to legally sublet without the express permission of your landlord.

There are six major steps in the process of subletting legally. You will need to follow these steps closely and carefully, because in California the landlord has more rights and say regarding this than a tenant.

The first step would be to check your lease to see its policy on subletting. In many other states, the law would take precedence and void a landlord's right to prohibit subletting in the lease. The law is actually able to override the landlord’s say. However in California, the law cannot void the lease and it is perfectly legal for the landlord to prohibit subletting. If it says you absolutely cannot do it, you probably can't sublet legally. That being said, you can still get in touch with your landlord directly and plead your case - they may be willing to change their mind.

Assuming the lease does not prohibit subletting entirely or that you plan to plead your case to your landlord, the next major step would be to carefully vet your subtenant. The key to obtaining permission from your landlord is finding and suggesting a subtenant who is as qualified as you are; meaning, they pass the same requirements you had to meet in order to get on the lease in the first place.Suggesting someone who makes even slightly less income makes a convenient enough reason for a landlord to refuse.

In order to ensure that you've covered all your bases, you can send a letter to your landlord via certified mail, return-receipt requested. You should keep a copy of the document for your own records. Certified mail is the only proof of delivery that most courts will accept and thus is the best way to protect yourself. The letter should clearly outline the terms of the agreement and information such as the start date and term of your proposed subtenant lease and the name and current address of the subtenant being suggested. You should also the written and signed consent of any co-tenant and a copy of the proposed lease. At this point, it would be to the discretion of the landlord to then request more information about this proposed subtenant.

If your lease says that you are not allowed to sublet then in California your landlord can ignore or refuse your request with impunity. If this happens, your only recourse will be to inform your landlord that they have a duty to mitigate damages by accepting your subtenant.There is one legal exceptions to this rule in California would be if you are in San Francisco and replacing a departing roommate, then your landlord must respond within fourteen days. If they do not then you are free to sublet.

If you do successfully get approval for a sub-tenant, the next step would be to protect yourself against damages to the apartment or protect any belongings that you leave in the space, you should take a security deposit from your subtenant. Follow California laws for accepting and holding security deposits as best you can. The most important thing to do is agree on the state of the apartment with your subtenant so that you don't get charged for damages caused by them.

You don't want to spend the first day of every month pestering someone for rent so that you can pay your landlord. You don't want to have to think about it at all. You should agree on a process for rent payments before they move in and put this process in writing in the sublet agreement that you both sign. This can help avoid the pressure and stress of navigating this issue once your subtenant has already moved in.

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