Subleasing? Protect Your Rights by Making It Official.

By Sara Gebhardt
Saturday, June 9, 2007

Q: My daughter is a graduate student at an out-of-state university. She found a nice off- campus apartment in an upscale rental complex. She will sublease part of the apartment from a couple who are the primary tenants. She would have her own bedroom and bathroom and would share the kitchen and living room. She also plans to rent her parking spot in the apartment garage and would be allowed to use the community's pool, gym, etc.

This arrangement causes me some concern, as I want to protect my daughter's legal rights. Should she or the primary tenants notify the landlord or management company? Should she be added to the apartment lease as a named tenant? How is she assured access to the pool and other facilities if she is not the lessee? Should she have a written agreement covering her subtenancy arrangement with the roommates? If so, is a preprinted form adequate, or should they try to craft their own agreement from scratch?

The "master lease" expires in a few months. The lessees then plan to go month to month. What are her rights and obligations then, if any?

Because this is a built-in two vs. one arrangement, how should decisions about daily living be determined? -- Potomac

A: You are right to want to help your daughter protect her rights as a tenant. The best approach is to draw up a written agreement -- between your daughter and the apartment's current tenants, between your daughter and the management company, or both.

First, your daughter should talk to the residents to find out how they intend to make her tenancy official. They may be choosing to sublease the apartment because their lease is almost over and they want month-to-month flexibility. Putting your daughter on the official lease could result in another year-long lease or a rental increase.

Having a sublessor's agreement should ensure that your daughter has protections similar to those that the tenants have under their lease with the management company. Be sure to look at the tenants' signed lease to find out what those terms are.

It is important to double-check that the building allows subletting. If your daughter wants to use the pool, gym and parking garage, management will need to know she exists.

Yes, people overlook rules against subleasing, but that could jeopardize your daughter's access to common areas or make her feel uncomfortable.

If the tenants do not want to sign a new lease that includes your daughter and if the building does not allow subleasing, advise her to keep apartment-hunting.

But, let's say all goes well and she is allowed to sign an agreement with the current tenants. They can certainly use a generic, preprinted lease agreement. Just remember that housing laws will override any illegal terms in the agreement.

Leases you find on the Internet or in office supply stores may not reflect some local housing laws. You can usually obtain sample leases from your local or state housing office.

What happens when the main lease goes month to month depends on the sublease. If the agreement is on the up and up with management, your daughter could request to be given priority to take over the lease of the apartment if her roommates move out, whereupon she could find new roommates.

Based on the agreement, her status as both a sublessor and a month-to-month tenant could allow her to exit the agreement with a month's notice if she is unhappy with the situation.

As for dividing the daily duties, well, this may prove challenging. The couple probably will make decisions as a pair and thus wield more influence in their already-established apartment -- or perhaps they will fight and ask your daughter to take sides.

As long as her roommates are not tired of dealing with documents, the trio could collectively draw up an informal roommate agreement that explains chores, bill-paying, noise and guest policies. This may make it easier to talk about daily living.

Have your daughter talk with her prospective roommates about the arrangement. Make sure she tells them that she wants a voice and that she doesn't want to feel awkward when she is in the kitchen or living room. She will want to make it clear that she expects to do her part but also does not want to feel like a third wheel.

Q: My husband and I have lived in a stately but old apartment building for 14 years. Noise had not been an issue until the past three years.

The mother and son who lived above us for most of that recent time were noisy. She would prowl around all night and even move furniture at 2 a.m. She had no carpeting.

We complained to our landlord, and he promised that the next tenant would be required in his lease to have carpet. Two weeks after a single father and two children moved in, the father denied ever being told about the carpet issue, pleaded allergies and refused to spend money for carpet! Somewhere along the way, I remember something about rental apartments above others being required to carpet a specific percentage of their floor space. Are there any rules regarding this? Where can I find them? -- Washington

A: There are no universal rental laws that require tenants to carpet their apartment floors. In a particular building, it depends on the landlord's rules or, in the case of private owners or condos, the community's rules.

If your building does not come with carpet and your landlord does not make it a condition in the lease or community rules, then neither you nor your neighbors are required to install carpet.

Rather than get angry at your new neighbors, you should take the issue up with your landlord again. It is possible that your landlord did not do as he said he would by making carpet a lease term for the new tenants.

Ask the landlord to talk to your new neighbors about noise and bring up the subject of carpet. You could ask your landlord to stay true to his word and offer to buy carpet for that apartment -- or at the very least, ask him to intervene early so that tenants know about noise rules.

Remind your landlord that you have been tenants for more than a dozen years and hope that he can work to ensure a better living environment for you. Because you have evidence that noise levels have changed depending on who lives above you, it seems that laying down some rules -- if not carpet -- would help persuade new tenants to be quieter neighbors.

Do you have questions, comments or ideas about apartment life? Contact Sara Gebhardt via e-mail at aptlife@gmail.comor by mail, c/o Real Estate Editor, The Washington Post, 1150 15th St. NW, Washington, D.C. 20071.