A sublease holds the original tenant responsible

Kevin Runkle

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You and a few friends are all living together; there’s a few problems and eventually you decide you can’t take it any more and you want to move out. You find someone who wants to move in and take your “spot” in the apartment or house. Most people think of this as “sub leasing” – but is it a sublease or an assignment of lease? Maybe it sounds like a legal technicality, but there’s a big difference between the two. In a sublease, you are still “on the hook” to the landlord, because you are still on the original lease with your roommates. You actually become a landlord to the person who moves into your spot. In a sublease, you and the new tenant sign a lease between the two of you.They pay you rent, and you in turn pay the landlord. The new tenant pays you a security deposit, which you hold to make sure they don’t tear up the place that you are still responsible for. At the end of the lease term, the landlord checks everything (and you should check too, because you are still on the original lease) and when your deposit is returned, you can refund the new tenant’s deposit. If your new tenant is responsible for any damage to the place, the landlord can still sue you, and then you would have to turn around and bring the new tenant into the lawsuit by showing the agreement you and the new person signed. In this whole arrangement, the landlord does not have to approve of the new tenant.

An assignment is different, in that the new tenant actually “steps into your shoes.” This arrangement has to have the full approval of the landlord, because the new tenant will be written into the lease and your name will be crossed off. The landlord should inspect the place before you move out, to make sure you haven’t done any damage to the house.

The new tenant should pay a security deposit to the landlord and you should get your deposit back. There are landlords in this area who try to mix together the best parts of a sublease and an assignment. They’ll call it a sublease, but it’s not really a sublease in the eyes of Illinois law.

The landlord may tell you that they won’t pay your deposit back until the lease is over, you can move out, the new person comes in, they’ll collect a deposit from the new tenant and they’ll even tell you that if the new tenant doesn’t pay the rent that they can come after you for it! A judge would look at that arrangement and tell the landlord that he cannot have the best of both worlds: It’s either a sublease or an assignment.

If you find yourself in a situation like this, call us. Don’t sign any kind of “moving out” agreement until you get some help from either STU or Student Legal Service.