By the Bais Hora'ah
Q: I am one year into a three-year lease on an apartment, and I just bought a house. I want to sublet my apartment to my friend for the remaining two years for a higher monthly rental fee than I pay my landlord. May I sublet the apartment without notifying my landlord or do I have to secure his permission in order to do so?
A: The Shulchan Aruch (C.M. 316:1) rules that a tenant may sublet an apartment to another renter. Chazal’s rule of ein hasocher rasha’i lehaskir (a renter may not sublet) applies only to objects, because the owner may claim that he is concerned that the second person might steal the object. Since a person cannot abscond with real estate, it is not included in this rule.
If the landlord offers to cancel the lease and take back the property for his personal use, we allow him to do so (ibid. 316:1, Sma 2; see Emek Hamishpat 5:61 regarding cases in which the landlord wants to give the property to his son or his friend). If the original tenant stands to earn money by renting the property for more than he is paying the landlord, he is not required to return the property to the landlord unless the landlord agrees to pay the difference (Pischei Teshuvah 316:1).
Five conditions must be met, however, in order for a property to be sublet:
The original tenant may not sublet to a family that is larger than his own (ibid. 316:1). The owner is entitled to object to a sublease to a larger family because the increased occupancy increases the probability of damage being inflicted on the property (Nesivos 363:9, but see Kesef Hakodashim 316:1).
If there is a chance that hidden damages can be caused to the property, which will be revealed only when it is too late for the owner to determine which renter is responsible for them, the owner can refuse to allow the sublease on the grounds that he might not be able to recover damages (Sma 316:1).
The person subletting the apartment must be a reliable person (Pischei Teshuvah 316:2). If the second renter tends to be a destructive, violent, argumentative or unhygienic person, the landlord may veto the sublease (Aruch Hashulchan, ibid. 3). It would therefore be forbidden, for instance, to sublet to single young men, who are more likely to damage the property.
If the landlord lives in the same building as the rental apartment, he may object to any renter he wants, because it is common practice for a landlord to be very selective in choosing a tenant for a property he resides in (see 316:2 and Teshuras Shai 1:379).
If the apartment is furnished, the owner may veto the sublease on the grounds that he is concerned that the second renter will steal the furniture or appliances. This rule does not apply, however, if the original tenant can prove that owner generally rents to anyone who shows interest in his property (see Erech Shai 342 and Umka Dedina 1:299).
As is the case with any financial transaction, however, all conditions set forth at the outset of the lease are binding. Therefore, if the landlord stipulated that the property may not be sublet, or even if he did not express this clearly but the minhag hamakom (prevalent local custom) is not to allow subleases, the renter may not sublet without the owner’s permission.
Nowadays, the practice in most jurisdictions is to include a non-subletting clause in real estate contracts. If that is the case in your locale, then even if this clause wasn’t written into your contract, the landlord can veto your sublease.
Note that these rules apply only to long-term subleases. It is generally accepted that a renter may sublet his apartment for a short time, such as over Shabbos or Yom Tov, so unless short-term subleases were specifically ruled out in the rental contract, the tenant may sublet for a brief period.
If the sublease was not permitted, and the renter sublet it anyway, the difference between the amount he pays the landlord and the amount he charged for the sublease belongs to the landlord (Rema 363:10; see Pischei Teshuvah 316:2 and Erech Shai 316:1). But if the sublease was allowed, then if the tenant charged a higher rent than he is paying, he may keep the difference (Choshen Mishpat 363:10).