Difference Between Lease Assignment & Lease Subletting

Assigning a lease and subletting a lease are similar transactions with very different legal consequences. If you're a tenant considering transferring some or all of your rights to a property, you need to know the distinctions between these common transactions.

Sublease

A sublease is an agreement to transfer some, but not all, of your rights to a rental property. For example, if you're a tenant under a 12-month lease and you agree to allow someone else to occupy the property for six of those 12 months, you've entered into a sublease. You've transferred a portion of your rights to the property to the subtenant, but you retain the right to occupy the property for the remaining six months of the lease.

Assignment

An assignment of a lease is an agreement to transfer all of your rights to the entire property for the rest of your existing lease term. For example, if you're three months into a 12-month lease and you need to move out of state, you might decide to assign your lease rights to another person. Under an assignment, the new tenant called the assignee -- has an absolute right to occupy the property for the remaining nine months of the lease. You do not retain a right to re-enter the property or to have the assignee removed.

Consent

Many leases expressly prohibit the assignment or subleasing of rental property. Others require the landlords written consent. Where a landlords consent is required, he may not withhold consent for arbitrary or discriminatory reasons, but he may refuse to consent over legitimate concerns, such as a potential subtenants credit history.

Release

Unless you get a specific release from your landlord, you remain obligated for the rent whether you sublease or enter into an assignment. If the subtenant or assignee fails to pay, the landlord can collect the rent from you. Therefore, attorneys often advise tenants to sublease rather than assign their leases. This way, if the subtenant fails to pay, the tenant can have him removed from the property.

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