Subletting and roommates in California: what your lease and the law allow

Start with the lease

Read the clauses on occupants, guests, assignment and subletting. Some leases prohibit subletting entirely, some require the landlord's written consent, and some list the people allowed to live in the unit. Under the Civil Code chapter on assignment and sublease, a lease that does not restrict transfers generally allows the tenant to sublet or assign. Under § 1995.260, if the lease requires consent but does not state a standard, consent may not be unreasonably withheld. A lease can also set an express standard, and that standard generally applies.

Ask for consent in writing, name the proposed subtenant or roommate and offer basic information such as income or references. Keep the landlord's answer. If the landlord refuses without a reason, ask for the reason in writing.

Sublease, assignment or new co-tenant

In a sublease, you stay the tenant and the subtenant rents part or all of the unit from you, often for part of the term. In an assignment, you transfer your whole interest to someone else. A new roommate may also be added as a co-tenant on the lease, which creates a direct relationship with the landlord. Each option has different consequences for who pays, who can be evicted and who gets the deposit back.

If you sublet, you are acting much like a landlord toward your subtenant. Put the terms in writing: rent, the share of utilities, house rules, the end date and how the deposit is handled. Your subtenant generally has no greater right to stay than you do.

Risks for the original tenant

Co-tenants who sign the same lease are usually jointly and severally liable, which means the landlord can ask any of them for the full rent or the cost of damage. If you sublet, you generally remain responsible to the landlord if the subtenant stops paying or damages the unit. Subletting or assigning in violation of the lease can be an at-fault just cause for ending the tenancy under Civil Code § 1946.2, although the landlord usually must first give you a chance to cure a curable violation.

• Get the landlord's consent in writing before anyone moves in.
• Write down the terms with any subtenant or roommate.
• Keep records of who paid what, including the deposit.
• Check local rules, which may protect replacement roommates.

Local rules can add protection

Some cities with rent control or just cause ordinances limit a landlord's ability to evict a tenant for replacing a departing roommate, or restrict rent increases when a roommate changes. These rules vary widely, so check your city's rent program or ask an attorney before you rely on them.