Subletting and Assignment in Residential Tenancies (19:X): Difference between revisions

Latest revision as of 08:17, 30 August 2024

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 15, 2024.

A. Concepts

For further explanation of the concepts of assignment and sublet, see RTB PG 19: Assignment and Sublet.

1. Assignment

An assignment is where a tenant permanently transfers the remainder of their rights and obligations in their tenancy to a third party, who directly becomes the new tenant of the original landlord (RTB PG 19).

Generally, the new tenant is not liable for the actions or omissions of the original tenant; however, the original tenant may remain liable to the landlord under the original agreement under these circumstances (RTB PG 19):

the assignment was made without the landlord’s consent;
the assignment agreement does not fully assign all obligations to the new tenant.

2. Sublet

In a sublease agreement, the tenant temporarily moves out of the rental unit, temporarily becoming the “landlord” of a third party who moves in as a subtenant. Throughout a sublease, the original tenancy remains intact, and the tenant remains responsible to the landlord under the terms of the original tenancy agreement (RTB PG 19). The sublease agreement governs the contractual relationship between the tenant and the subtenant.

As the definition of “landlord” under the RTA includes tenants who sublet to a subtenant, the RTA affords many of the protections to the subtenant against the tenant as if it were an ordinary tenancy agreement; however, the subtenant has no contractual relationship with the original landlord and has no recourse against them (RTB PG 19).

Furthermore, the tenant’s obligations as the subtenant’s landlord is dependent on their own tenancy relationship with the original landlord, meaning that the subtenant does not enjoy the complete protection of the RTA. For instance, an original landlord who ends the tenancy agreement also ends the sublease agreement; also, while a subtenant can seek an RTB order for a rent reduction if requested repairs are not completed within a reasonable time, the tenant can only have the repairs done by requesting the same from the original landlord (RTB PG 19).

The tenant must retain an interest in the tenancy for a sublease agreement to be valid, so the sublease term must end sometime before the end of the tenant’s tenancy, even if the remaining time is as short as one day. For example, for a fixed-term tenancy agreement with six months remaining, the term of the sublease agreement may be six months less one day. If the sublease lasts the entire remainder of the original tenant’s tenancy, it may be determined to be legally an assignment instead (RTB PG 19).

3. Roommates Not Covered by the RTA

One living situation that is commonly mistaken to be an assignment or a sublet is when a person moves in with a tenant only under an agreement with the tenant, and not the original landlord.

Unlike an assignment or a sublet, this type roommate is not covered by the RTA and has no recourse under tenancy legislation; to gain protection under the RTA, the roommate should ideally have themselves named on the written tenancy agreement. If a legal dispute arises and the roommate still does not have written evidence of a tenancy agreement with the original landlord, they should either seek recourse against the original tenant at the CRT or Small Claims Court, or make an application at the RTB and try to argue that an implied tenancy agreement in fact exists between them and the original landlord in order to be covered by the jurisdiction of the RTB.

B. Right to Assign or Sublet and Duty to Obtain Consent

A tenant may assign or sublet their interest in a tenancy agreement, but only with the written consent of the landlord (RTA, s 34(1)). However, the landlord must not be arbitrary or unreasonable in withholding consent if the tenant has a fixed term tenancy with six months or more remaining (RTA, s 34(2)); where a landlord has unreasonably withheld consent, the tenant may apply for an RTB order allowing the sublet (RTA, s 65(1)(g)). A landlord must not charge a tenant anything for considering, investigating or consenting to an assignment or sublease (RTA, s 34(3)).

1. Limitations in Subsidized Housing

For rental units operated by certain public housing bodies whose rent is dependent on the tenant’s income, the landlord is exempt from the prohibition under section 34(2) of the RTA from unreasonably withholding consent to assign or sublet for fixed term tenancy agreements with more than six months remaining (RTR, s 2). Usually, this means that their tenants cannot assign or sublet their tenancy. The affected bodies under this section are:

the British Columbia Housing Management Commission;
the Canada Mortgage and Housing Corporation;
the City of Vancouver;
the City of Vancouver Public Housing Corporation;
Metro Vancouver Housing Corporation;
the Capital Region Housing Corporation; and
any housing society or non-profit municipal housing corporation that has ever had an agreement (including if the agreement expired and was not renewed) regarding the operation of residential property with the following:
- the government of British Columbia;
- the British Columbia Housing Management Commission;
- the Canada Mortgage and Housing Corporation;
- a municipality; and
- a regional district.

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-{{REVIEWED LSLAP | date= August 10, 2021}}
+{{REVIEWED LSLAP | date= August 15, 2024}}
 {{LSLAP Manual TOC|expanded = landlord}}
-== '''A. Right to Assign or Sublet and Duty to Obtain Consent''' ==
+== A. Concepts ==
-According to s 34 of the ''RTA'', a tenant may assign or sublet their interest in a tenancy agreement with the written consent of the landlord (s.34(1)); in other words, '''the landlord’s written consent is always required for an assignment or subletting of the agreement.''' However, the landlord must not be arbitrary or unreasonable in withholding consent if the tenant has a fixed term tenancy with six months or more remaining (s 34(2)). A tenant may apply for an Arbitrator’s order where a landlord has unreasonably withheld consent: see ''RTA'' s 65(1)(g). Section 34(3) stipulates that a landlord must not charge a tenant anything for considering, investigating or consenting to an assignment or sublease.
+For further explanation of the concepts of assignment and sublet, see RTB PG 19: Assignment and Sublet.
-Public housing tenants or tenants receiving a rent subsidy (those renting premises owned by the Crown, or by a non-profit organization receiving rental subsidy by agreement with the Crown, or whose landlord is the B.C. Housing Management Commission) are exempt from these assignment and sublet provisions. Generally, this means a subsidized housing tenant cannot assign or sublet a rental unit.
+=== 1. Assignment ===
-People with licences to occupy, such as roommates or other occupants,  may not be sub-tenants or assignees.
+An assignment is where a tenant permanently transfers the remainder of their rights and obligations in their tenancy to a third party, who directly becomes the new tenant of the original landlord (RTB PG 19).
-== '''B. Creating a Sublet''' ==
+Generally, the new tenant is not liable for the actions or omissions of the original tenant; however, the original tenant may remain liable to the landlord under the original agreement under these circumstances (RTB PG 19):
+*the assignment was made without the landlord’s consent;
+*the assignment agreement does not fully assign all obligations to the new tenant.
-Generally, sub-tenants have many of the same rights against the tenant they rent from as do tenants against the original landlord, with the exception that they cannot themselves dispute the actions of the “main” landlord, as this can only be done by the original tenant. This only applies, however, if a sublet is actually created. Where an individual takes on a roommate, and that roommate does not either hold a sublet approved by the landlord or is subletting a clearly defined, separate portion of the property, that roommate will not be considered a sub-tenant. As a result, '''individuals moving in as roommates may wish to ensure either that they are named on a written lease as a co-tenant or tenant in common.''' If they are not named on such a written lease, they will have no recourse against the landlord at the RTB unless they can prove that a tenancy agreement has been created between the two in some other way.
+=== 2. Sublet ===
-Tenants wanting to create sublets must retain an interest in the tenancy. This is done by making sure that the sublease ends before the first tenant’s lease with the original landlord does. For example, if a tenant has a fixed term tenancy agreement that lasts for six more months and wants to sublet to a sub-tenant, that sublease must, at maximum, be for six months less a day so that the tenant still retains an interest in the tenancy. In a periodic tenancy, there must be an understanding that the sublet continues on a month-to-month basis, less one day, in order to preserve the original tenant’s interest in the tenancy. Where a sublet continues for the full period of the tenancy, it likely amounts in law to an assignment instead. See '''Policy Guideline 19: Assignment and Sublet'''.
+In a sublease agreement, the tenant temporarily moves out of the rental unit, temporarily becoming the “landlord” of a third party who moves in as a subtenant. Throughout a sublease, the original tenancy remains intact, and the tenant remains responsible to the landlord under the terms of the original tenancy agreement (RTB PG 19). The sublease agreement governs the contractual relationship between the tenant and the subtenant.
-A sub-lessee has privity of estate and contract with the head landlord and is bound by all the covenants in the original lease.
+As the definition of “landlord” under the ''RTA'' includes tenants who sublet to a subtenant, the ''RTA'' affords many of the protections to the subtenant against the tenant as if it were an ordinary tenancy agreement; however, the subtenant has no contractual relationship with the original landlord and has no recourse against them (RTB PG 19).
-{{LSLAP Manual Navbox|type=chapters15-22}}
+Furthermore, the tenant’s obligations as the subtenant’s landlord is dependent on their own tenancy relationship with the original landlord, meaning that the subtenant does not enjoy the complete protection of the ''RTA''. For instance, an original landlord who ends the tenancy agreement also ends the sublease agreement; also, while a subtenant can seek an RTB order for a rent reduction if requested repairs are not completed within a reasonable time, the tenant can only have the repairs done by requesting the same from the original landlord (RTB PG 19).
+The tenant must retain an interest in the tenancy for a sublease agreement to be valid, so the sublease term must end sometime before the end of the tenant’s tenancy, even if the remaining time is as short as one day. For example, for a fixed-term tenancy agreement with six months remaining, the term of the sublease agreement may be six months less one day. If the sublease lasts the entire remainder of the original tenant’s tenancy, it may be determined to be legally an assignment instead (RTB PG 19).
+=== 3. Roommates Not Covered by the ''RTA'' ===
+One living situation that is commonly mistaken to be an assignment or a sublet is when a person moves in with a tenant only under an agreement with the tenant, and not the original landlord.
+Unlike an assignment or a sublet, this type roommate is not covered by the ''RTA'' and has no recourse under tenancy legislation; to gain protection under the ''RTA'', the roommate should ideally have themselves named on the written tenancy agreement. If a legal dispute arises and the roommate still does not have written evidence of a tenancy agreement with the original landlord, they should either seek recourse against the original tenant at the CRT or Small Claims Court, or make an application at the RTB and try to argue that an implied tenancy agreement in fact exists between them and the original landlord in order to be covered by the jurisdiction of the RTB.
+== B. Right to Assign or Sublet and Duty to Obtain Consent ==
+A tenant may assign or sublet their interest in a tenancy agreement, but only with the written consent of the landlord (''RTA'', s 34(1)). However, the landlord must not be arbitrary or unreasonable in withholding consent if the tenant has a fixed term tenancy with six months or more remaining (''RTA'', s 34(2)); where a landlord has unreasonably withheld consent, the tenant may apply for an RTB order allowing the sublet (''RTA'', s 65(1)(g)). A landlord must not charge a tenant anything for considering, investigating or consenting to an assignment or sublease (''RTA'', s 34(3)).
+=== 1. Limitations in Subsidized Housing ===
+For rental units operated by certain public housing bodies whose rent is dependent on the tenant’s income, the landlord is exempt from the prohibition under section 34(2) of the ''RTA'' from unreasonably withholding consent to assign or sublet for fixed term tenancy agreements with more than six months remaining (''RTR'', s 2). Usually, this means that their tenants cannot assign or sublet their tenancy. The affected bodies under this section are:
+*the British Columbia Housing Management Commission;
+*the Canada Mortgage and Housing Corporation;
+*the City of Vancouver;
+*the City of Vancouver Public Housing Corporation;
+*Metro Vancouver Housing Corporation;
+*the Capital Region Housing Corporation; and
+*any housing society or non-profit municipal housing corporation that has ever had an agreement (including if the agreement expired and was not renewed) regarding the operation of residential property with the following:
+**the government of British Columbia;
+**the British Columbia Housing Management Commission;
+**the Canada Mortgage and Housing Corporation;
+**a municipality; and
+**a regional district.
+{{LSLAP Manual Navbox|type=chapters15-23}}