Assignment of a Lease or Subleasing

Assignment of lease agreement and notice to sublet the dwelling

Download the PDF: Assignment of lease agreement

Download the PDF: Notice of lease assignment

Download the PDF: Notice of subletting of dwelling

Breaking your lease… without breaking the rules!

Contrary to popular belief, a lessee cannot simply break their lease with three months’ notice at any time during the lease and for any reason.

In fact, there are only four specific situations where the lease can be terminated during its term:

  • The lessee has been allocated a dwelling in low rental housing.
  • They can no longer occupy the dwelling because of a disability.
  • They are a senior who has been permanently admitted to a residential and long term care centre (CHSLD), a seniors’ residence or any other lodging facility where the care and services required by their state of health are provided.
  • The safety of the lessee or of a child living with the lessee is threatened because of the violent behaviour of a spouse or former spouse or because of a sexual aggression.

A lessee cannot force the lessor to terminate their lease for other reasons, such as the purchase of a home, divorce, disagreement between joint tenants, formation of a new household, the need for a larger dwelling, financial problems, or moving for work.

The lessee can always try to come to an agreement with the lessor about terminating the lease, preferably in writing.

If there is no agreement, the lessee has two choices: they can assign their lease or sublet their dwelling to another person.

Exceptions

It should be noted that you cannot assign your lease or sublet your dwelling if:

  • You are a student renting a dwelling at an educational institution.
  • You are a lessee in low rental housing.
  • Your dwelling is used as a family residence and the lessor has been notified of this fact by either you or your spouse (married or civil union spouse, not de facto spouse), unless your spouse has given written consent to the assignment or sublet.

Note: In some cases (such as joint tenancy situations), your right to assign or sublet may be restricted. Contact the Tribunal administratif du logement for more information.

Assignment vs. subletting: What’s the difference?

If you are a lessee and you want to leave a dwelling, ask yourself whether you want to have the option to return to the dwelling.

If you are leaving temporarily to travel, study or work for just a few months, and your goal is mainly to avoid paying rent for an empty dwelling, then subletting would be a good solution. You remain the lessee, with all of your rights and obligations intact.

If, on the other hand, you are leaving for a job in another city or moving into a new home, and you would rather be released from your lease and its obligations, you’re better off assigning your lease. When you do this, you waive your right to return to the dwelling.

Assignment and subletting: Similarities

Some of the formalities of these two situations are identical.

Before we go any further, there are a few terms we should define for the sake of clarity:

  • The assignor is the lessee who is assigning their lease, i.e., the person who is leaving the dwelling.
  • The assignee is the person to whom the lessee assigns their lease, i.e., the person who will be living in the dwelling.
  • The sublessor is the lessee who is subletting their dwelling, i.e., the person who is leaving the dwelling.
  • The sublessee is the person to whom the lessee sublets their dwelling, i.e., the person who will be living in the dwelling.

Notice of assignment or subletting

Found someone interested in living in your dwelling, either as an assignee or a sublessee? Sign a written agreement right away (either an assignment of lease agreement or a sublet lease), which will be conditional on the lessor granting consent. How to go about entering into this agreement will be explained further on.

Next, give the lessor notice, in writing, with the name and address of the person who is interested in your dwelling. This information is mandatory. Of course, you may also provide the lessor with further information, provided that you have the “applicant’s” consent. The notice should also include the expected date of the assignment or sublet. We suggest using the notice of assignment or subletting templates that are available on the Tribunal’s website or from your local Tribunal office.

Make sure that you can prove the date that the lessor received the notice, because they have 15 days from this date to let you know whether they accept or refuse the proposed lessee. If they do not respond, they are presumed to have accepted the person.

Refusal of assignment or sublet

If the lessor refuses the proposed lessee, they are required to inform you of their reasons for doing so. Their reasons for refusing the proposed lessee must be serious, such as problematic behaviour or an inability to pay the rent. So, it is a good idea for you to thoroughly vet the “applicant” yourself before proposing them to the lessor!

Recourse if the lessor refuses

If the lessor refuses for reasons that do not seem serious, you can ask the Tribunal to assess these reasons or terminate the lease.

If the Tribunal determines that the lessor’s refusal is unjustified, it can declare the assignment or sublet to be valid. The Tribunal can also order the lessor to pay damages if you have suffered harm.

When you come to the hearing, bring all relevant documents supporting your application. Summon your proposed assignee or sublessee as a witness: their presence is essential!

Assignment and subletting: Differences

Implications of lease assignment

For the assignor

You transfer all your rights to the assignee, including the right to maintain occupancy. You are released from all obligations as of the date of the assignment, and therefore do not have to give notice of non renewal of the lease to the lessor.

For the assignee

The assignee is not a new lessee in the eyes of the law, and therefore is not entitled to have their rent fixed by the Tribunal. However, once they become the lessee, they acquire all the rights and obligations of the lease. Since they are also bound by all the terms and conditions of the lease assigned to them, they should obtain a copy of the lease from the assignor.

For the lessor

Once the assignment takes effect, the lessor is bound to the assignee. They must give any notice concerning the lease to the assignee and collect the rent from them. The lessor does not have to sign a new lease with the assignee.

Implications of subletting

For the lessee (sublessor)

As the lessee subletting the dwelling, you remain entirely responsible for all of the obligations of the lease.

Before signing any sublet lease, you should give the sublessee a copy of the building rules, if applicable. You should also include all of your main obligations to the lessor (e.g., no smoking) in the sublet lease or include references to these obligations.

As the sublessor, you are also obligated to:

  • Ensure that the dwelling is delivered in good habitable condition and in clean condition, and that it is maintained in a good state of repair in all respects
  • Provide the sublessee with peaceable enjoyment of the property

For example, if necessary, repairs are not completed, the sublessee could take recourse against you, the sublessor. You would then be responsible for getting the lessor to fulfill their obligations to you.

NOTE: You are still responsible for the lease. If you do not want the lease to be renewed, you must give your lessor notice of non renewal within the appropriate time frame.

In addition, the lessor may decide not to renew your lease if you have sublet your dwelling for more than 12 months (whether consecutive or not). Contact the Tribunal administratif du logement for more information.

For the sublessee

The sublessee is bound by the terms and conditions of the lease they have signed with you, but they do not have the right to maintain occupancy, since you retain the right to return to the dwelling at the end of the sublet.

You also retain the right to terminate your lease in the manner and time provided by law. If you do not renew your lease and the sublessee wishes to remain in the dwelling, they will have to try to sign a new lease with the lessor.

Note: The sublessee is not required to vacate the premises unless they receive 10 days’ notice to vacate from the lessee or lessor. Contact the Tribunal administratif du logement for more information.

Furthermore, as your (their sublessor’s) new lessee, the sublessee is entitled to have the rent fixed by the Tribunal if their rent is higher than the lowest rent paid during the 12 months preceding the sublease or higher than the rent that has already been fixed by the Tribunal.

For this reason, you must give the sublessee the notice to a new lessee specified in the legislation at the time of entering into the lease.

As well, if the lessor fails to perform their obligations, the sublessee may exercise the rights and remedies of the lessee to have them performed.

For the lessor

The lessor retains all their rights and all their obligations to the subletting lessee.

If the sublessee does not fulfill their obligations, causing serious harm to the lessor or other lessees or occupants, the lessor can ask to have the subletting lessee’s lease terminated, or, as is specifically provided for under the law, ask to have the sublet lease terminated.

How do I enter into a lease assignment agreement?

A very simple template for a conditional agreement, entitled Assignment of lease agreement, is available on the Tribunal administratif du logement’s website. We recommend filling out this template before giving the lessor your notice of assignment.

Before signing the agreement, you must provide the assignee with any relevant information you have and let them know if you have received any notice from the lessor+, such as a notice of rent increase.

How do I enter into a sublet lease?

First, obtain the Tribunal administratif du logement’s mandatory lease form. In the box where the parties are identified, cross out the words “lessee” and “lessor” and replace them with “sublessee” and “sublessor,” respectively, Remember, this lease is conditional on the lessor’s acceptance of the sublet.

Some terms and conditions in the sublet lease may be different from those in the main lease, but they should not contradict the main lease in such a way that the sublessee is given more rights than the lessee already has. For example, if the lessee’s lease states that pets are not allowed, the sublessee cannot be allowed to have pets. However, if the main lease allows pets, the sublet lease can still prohibit them. The same is true for parking spaces and so on.