Sublet, also known as subtenancy, happens when the tenant gives the temporary right to occupy the rental unit to another person. In such a case, the person is called a subtenant.
Under the Residential Tenancies Act, 2006 (RTA), a subtenancy has four features:
- The tenant must vacate the rental unit,
- The period of subtenancy must have a fixed term and must be shorter than the remaining term of the tenancy agreement,
- The tenant must resume occupancy of the rental unit at the end of the subtenancy, and
- The tenant must obtain the consent of the landlord before the subtenancy.
If the tenant does not vacate the rental unit. Instead, the tenant and the other person live together and share the common areas, this person is a roommate but not a subtenant.
Consent of the landlord
The tenant must obtain the landlord’s consent before subletting the rental unit. However, what if the landlord does not consent to the subtenancy without giving proper reasons?
Subsection 97(2) of the RTA prohibits a landlord from withholding the consent arbitrarily or unreasonably. In other words, the landlord cannot simply say no to the subtenancy. It is highly circumstantial to determine “arbitrarily” or “unreasonably”¹. If you are a landlord in this situation, it is better to consult with a legal professional.
If the landlord withholds the consent arbitrarily or unreasonably, the tenant may file an application with the Landlord and Tenant Board (LTB) for an order for allowing the subtenancy pursuant to subsection 98(1) of the RTA.
If the tenant sublets the rental unit without the consent of the landlord, the tenant and subtenant are all subject to termination of the tenancy and eviction. In this case, the subtenancy is not existing because of the lack of consent from the landlord.
Rights of a subtenant
Subsection 97(4)b of the RTA provides that the subtenant is entitled to the benefits, and is liable to the tenant for the breaches of the subtenancy agreement or RTA. Essentially, the subtenancy agreement is between the tenant and the subtenant. Therefore, the subtenant has no business with the landlord.
For example, the subtenant pays rent to the tenant, not to the landlord. Also, if the subtenant damages the rental unit, the tenant is responsible for fixing.
On the other hand, if the subtenant has any act that justifies an eviction, the tenant may apply to the LTB for an order for evicting the subtenant.
When a tenant wants to vacate the rental unit permanently, the tenant may terminate the tenancy agreement or find a third person to resume the occupancy of the rental unit pursuant to section 95 of the RTA. In the latter case, it might become an assignment and the third person might become an assignee.
In an assignment, the tenant will get out of the tenancy agreement permanently and the assignee will become a new tenant. The conditions of the tenancy agreement apply to the assignee as well. The assignee also resumes the rights and responsibilities under the tenancy agreement and the RTA.
In order fo the assignment to be existing, the tenant must obtain the consent of the landlord.
Again, if the landlord unreasonably or arbitrarily withholds the consent, the tenant may file an application with the LTB for an order allowing the assignment pursuant to subsection 98(1) of the RTA.
On the other hand, the landlord may refuse to consent to the assignment it is reasonable. The landlord may refuse the assignment in general, a specific assignee, or both. If the landlord does not consent to the assignment, the tenant may give a notice of termination to the landlord within 30 days after the date the tenant requested consent to the assignment.
If the landlord consents to the assignment, the assignee becomes the tenant. However, the former tenant is still responsible for the breaches of the tenancy agreement and RTA before the assignment. Likewise, the former tenant may claim any benefits he or she should have received when he or she was the tenant.
1.Colisanti v. Katz (1996), 1 R.P.R. (3d) 200 (Ont. Gen. Div.)