Technicality lets tenant assign lease to friend

Technicalities can make all the difference when it comes to leases. If a tenant wishes to peruse those, they may win in court where you thought you had an air-tight case. Anti-assignment clauses and subletting clauses are often added to leases, making sure that the tenant that the landlord okays is the one that actually lives there. If a landlord is not given the option to screen their tenant, someone that they never would have allowed to move in may do so. Wording on these clauses may make or break them. To say that the tenant 'may not' sublet is not commenting on their physical ability, but rather their right to do so. This becomes a 'restrictive clause' and the landlord may take action to void the lease. The individual that is subletting does become their tenant until this is done though.

A lease might also say that the tenant 'cannot assign or sublet...' Some courts may consider this to restrict not just the right, but the ability and the power of the tenant to sublet, immediately voiding out the action and the lease. This would keep the new 'tenant' from having any of the rights of the previous tenant, because they would not be there legally.

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POSTED January 21 2014 1:05 PM

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