· Updated on
Subletting and lease assignment in Quebec
The difference between subletting and lease assignment
Although they are often confused, subletting and lease assignment are two distinct legal mechanisms with very different consequences. Subletting means temporarily handing your dwelling over to a third party (the subtenant) while keeping your lease. The original tenant remains responsible to the landlord and can move back in at the end of the subletting period.
Lease assignment, on the other hand, is a permanent transfer of all the rights and obligations of the lease to another person. The original tenant (the assignor) leaves the dwelling permanently and the new tenant (the assignee) takes their place under exactly the same lease terms, including the rent amount. After a valid assignment, the original tenant no longer has any obligation to the landlord.
The choice between the two depends on your situation: if you're leaving temporarily (a trip, an internship, a student exchange), subletting is appropriate. If you're leaving for good, lease assignment is the solution.
Your rights as a tenant
Articles 1870 to 1876 of the Civil Code of Québec govern subletting and lease assignment. The fundamental principle is that every tenant has the right to sublet their dwelling or assign their lease, unless the lease contains a clause explicitly prohibiting subletting. Even where such a clause exists, lease assignment can never be prohibited by the lease.
The landlord can refuse a sublet or an assignment, but only on serious grounds. Serious grounds could be the obvious insolvency of the proposed candidate, an excessive number of occupants relative to the size of the dwelling, or an intended use incompatible with the purpose of the building. Simply not wanting a new tenant is not a serious ground.
It's important to note that the landlord cannot use a lease assignment to raise the rent. The assignee gets exactly the same terms as the assignor, including the rent amount.
The procedure to sublet
To sublet your dwelling, you must first notify your landlord in writing. This notice must contain the name of the proposed subtenant, their current address, the duration of the sublet, and the terms contemplated. The notice must be sent to the landlord a reasonable time before the sublet begins.
The landlord has 15 days after receiving the notice to respond. If they don't respond within this period, they are deemed to have consented to the sublet. If they refuse, they must state their grounds. A refusal without serious grounds can be contested before the TAL (Tribunal administratif du logement).
Once the sublet is accepted, it's strongly recommended that you enter into a written sublet agreement with the subtenant, setting out each party's rights and obligations, the rent amount, the duration, and the conditions for ending the sublet. Don't forget that you remain responsible to your landlord for paying the rent and complying with the terms of the original lease.
The procedure to assign your lease
The lease assignment procedure is similar but has important differences. You must also send your landlord a written notice of lease assignment, stating the name and current address of the proposed assignee. The landlord then has 15 days to respond.
The major difference lies in the landlord's right of refusal. For a lease assignment, the landlord can only refuse on serious grounds related to the person of the assignee. Tribunals interpret this restriction strictly: the landlord must show a real and substantial ground to justify their refusal. The landlord's silence after 15 days amounts to consent.
Once the assignment is done, the assignee acquires all the rights and assumes all the obligations of the original lease. The assignor is released from their obligations, unless the parties have agreed otherwise. Make sure to formalize the assignment in writing and give a copy to the landlord.
The landlord refuses: what can you do?
If your landlord refuses your sublet or lease assignment request, you are not without recourse. Article 1871 of the Civil Code of Québec lets you contest this refusal before the TAL if you believe the ground invoked is not serious.
To maximize your chances, first send a demand letter (mise en demeure) to the landlord asking them to reconsider their decision and to justify their refusal precisely. If the landlord maintains the refusal, file an application with the TAL. The tribunal will assess whether the ground invoked really is a serious ground within the meaning of the law.
The most common cases of unjustified refusal include: a refusal based on the candidate's ethnic origin or family situation (discriminatory and illegal), a refusal motivated by the desire to raise the rent, or a refusal with no justification at all. In all these cases, the TAL will likely order the landlord to consent to the sublet or the assignment.
Precautions to take
Whether you sublet or assign your lease, certain precautions are essential to protect yourself. Always draft a detailed written agreement between you and the subtenant or assignee. This agreement should specify the financial terms, the condition of the premises, each party's responsibilities, and the terms for ending the arrangement.
Do a detailed inventory of the condition of the dwelling and its contents before the sublet or assignment begins. Take dated photos of each room. This inventory will be valuable in the event of a dispute over the condition of the premises on return or at the end of the arrangement. Also check your insurance: your tenant policy might not cover damage caused by a subtenant.
Locato can help you formalize your steps with a demand letter if your landlord refuses without valid grounds.