If your tenant rents the rooms of the
flat that they rented to third parties , you are facing a sublease. In this article, we want to tell you whether or not the tenant can
sublet the home he occupies, under what conditions and what happens if he does so without your consent.& Nbsp;
Imagine the following case: you have a three-bedroom apartment, you decide to rent it and you find a person who seems solvent and who signs the rental agreement. After a few months in which you have received punctual rent payment, you discover that the tenant has proceeded to sublet two of the rooms to third parties. Surely, you will ask yourself several questions: can you do it without my consent? What happens when the lease expires? What can I do if I do not agree with the sublease? Next, we analyze the situation and answer all questions.
What does subletting a home mean?
As we have seen in the previous section,
subleasing a dwelling means
leasing, by the tenant, part or all of the dwelling to a third person . But it may happen that the sublease is or is not authorized by the landlord, either in the signed contract or in a subsequent document.
Regulation of subletting: is subletting allowed or not by law?
Subletting is regulated in article 8.2 of the Urban Leasing Law, which establishes the following:
–
2. The rented property may only be partially sublet and with the prior written consent of the landlord.
–
The sublet will be governed by the provisions of this Title for the lease when the part of the subleased property is used by the sublessee for the purpose indicated in article 2.1. If this condition is not met, it will be governed by the agreement between the parties.
–
The right of the sublessee will extinguish, in any case, when the right of the lessee who subleased does.
–
The sublease price may not exceed, in any case, that corresponding to the lease.
As a consequence of the above, we can conclude the following:
–
The property can only be sublet partially and the landlord’s consent is required. The most appropriate thing is that the consent is express, so it is convenient that it be given in writing and not verbally.
– The subletting is governed by the housing lease regulations.
– If the main housing lease is terminated, the sublease will be terminated, since the latter depends on the former.
– The rent paid by the sublessee may not be higher than that corresponding to the lease.
What can I do to prevent the tenant from subletting the apartment?
If you do not want your
tenant sublet your apartment or if it does so, do so with your consent, you must make it very clear in the contract that subletting is prohibited. To do this, you can expressly include a clause regarding the prohibition of
subletting that establishes the following:
The tenant may not sublet, in whole or in part, the leased property without the express written consent of the landlord.
Together with the above, you can regulate in the contract of
rental the people who will occupy the home or the maximum number of people who can live in the home, also establishing that the initial tenant must remain in the home, since, otherwise, we would be faced with a case of Assignment of the rental contract.
Notwithstanding the foregoing, if, for example, you decide to give consent to the tenant to sublet a room, you can limit the consent to a single sublet and to a certain person, so that when the sublet ends, the tenant must ask you permission again to
sublet.
What happens if the tenant proceeds to sublet the apartment?
Even if you take all the measures that we have seen in the previous section, it is possible that the tenant proceeds to
sublet the rooms, for example, in cases in which he cannot face the rent on his own. payment of the rent or want to profit from the subletting of rooms. In this case, if the express prohibition of subletting has been included in the contract, we will be faced with a breach of contract and article 27 of the
Urban Leasing Law so that:
–
The landlord may demand compliance or promote the termination of the contract.
– The subletting without consent is cause for termination of the contract by the landlord.
In order to put all of the above into practice, you can follow these steps:
– Gather
evidence, as we will discuss in the next section.
– Talk to a
lawyer who is an expert in real estate law and
rentals in homes to advise you.
– If indeed, the sublease exists and can be proven, the first step will consist of sending a reliable notification (
burofax with acknowledgment of receipt and text certificate) to the tenant indicating that the sublease is taking place. subletting without consent, which is a breach of the rental contract and a cause for termination of said contract and that in the event that the contract is not fulfilled within a certain period, you will proceed to file the corresponding legal actions.
– If the sublet continues, you can file a
judicial proceeding which could be an eviction for precariousness against the people who occupy the house and are not the tenant, an eviction for breach of contract for the sublet without consent or an eviction for non-payment of rent, if there has been non-payment by the tenant. It is necessary to study each case and analyze which procedure is the most appropriate, but it is always advisable to reach an out-of-court agreement.
How can you prove that your apartment has been sublet?
Before demanding compliance with the contract or promoting its termination due to an inconsistent sublease, it is necessary that you gather all the evidence related to the sublease, which may be the following:
–
Testimonials from neighbors of the same community of owners or from the porteror.
–
Supply bills that prove the increase in consumption or utility bills for the apartment that are not in the name of the tenant.
–
Advertisements of rooms in your apartment on real estate portals in which the tenant offers them for rent. You can take a screenshot with your mobile phone or computer and save the image as proof.
–
Certificate of registration of the dwelling in which the people who are registered in it appear. It is necessary to analyze this certificate because it may happen that people who are no longer in the apartment are registered.
–
Written complaints from neighbors or third parties due to excessive noise in the home or due to an elevated passage of people.
– Evidence collected by
detectives that may be valid in a trial because it was obtained legally.
All these tests must be analyzed by an expert lawyer to see if they are valid to prove the subletting and can be used in a lawsuit against the tenant or the occupants of the apartment.
In any case, it is always advisable to take precautions and analyze the solvency of the tenants to avoid delinquent tenants or contractual breaches, in addition to establishing in the contract the express prohibition of subletting rooms and acting as quickly as possible if you believe that the tenant is renting out rooms without your express permission.
