Article 1873 C.c.Q.: The effects of assigning a lease
The assignment of a lease discharges the former lessee of his obligations, unless, where the lease is not a lease of a dwelling, the parties agree otherwise.
Civil Code of Québec, art. 1873 C.c.Q.
What this article means
Article 1873 makes one essential point clear: for a residential lease, an assignment of the lease fully releases the former tenant (the assignor) from all future obligations. The assignee takes their place with every right and obligation of the lease, including the rent in force. The landlord can no longer claim from the former tenant any rent the assignee fails to pay after the assignment, nor any damage the assignee causes.
This automatic release is a major protection for a tenant who assigns their lease. Unlike commercial leases (where the parties can agree otherwise), a residential lease doesn't let the landlord require the assignor to remain jointly liable with the assignee. Any clause to that effect has no effect.
A sublet, by contrast, doesn't create this release: the main tenant stays responsible to the landlord for paying the rent and meeting all of the lease's obligations. If the subtenant doesn't pay their rent or causes damage, it's the main tenant who answers for it. This fundamental difference between an assignment and a sublet needs to be clearly understood before choosing between the two.
What it means for you
If you are a tenant
If you assign your lease with the landlord's consent (or through the effect of article 1978.2 when a refusal has no serious reason), you are completely released from every obligation. The assignee takes on the lease in your place. It's the cleanest way to leave a home before the lease ends.
If you sublet, you stay responsible. Choose your subtenant carefully and keep in regular contact. If your subtenant causes problems, the landlord will come to you. For that reason, an assignment is generally better than a sublet when you're leaving for good.
If you are a landlord
With an assignment of a residential lease, the former tenant can no longer be held responsible. Assess the assignee carefully before you consent, because they'll become your only point of contact. No joint-liability clause with the former tenant is valid in a residential lease.
When a tenant proposes an assignment, your assessment of the assignee is crucial since you'll have no recourse against the assignor. If the candidate presents objective, documented risks, that can be a serious reason to refuse under article 1871: but keep in mind the consequences of article 1978.2 if your refusal isn't found to be serious.
Related articles
- Article 1870 C.c.Q.: The right to sublet or assign your lease
- Article 1871 C.c.Q.: The landlord's refusal: serious reason and the 15-day deadline
- Article 1872 C.c.Q.: Reasonable expenses for a sublet or assignment
- Article 1978.2 C.c.Q.: Refusing an assignment without a serious reason: resiliation by operation of law (Law 31)
- Article 1876 C.c.Q.: A subtenant's recourse against the landlord
- Article 1944 C.c.Q.: Ending a lease after a long sublet