The Basics of Sublease Agreements in Virginia: A Beginner’s Guide

What is a Sublease Agreement?

A sublease agreement is a contract between the original tenant on a lease and a new occupant that the tenant wishes to occupy the demised premises for the rest of the term or a portion of the term. This is typically used in an attempt to circumvent a legal eviction and give the original tenant time to find a new place to live . In some instances, a new lease agreement may be entered into in which the original tenant leases the dwelling unit directly from the landlord and the subtenant pays rent to the landlord directly. Generally speaking, a new sublease cannot be created without the consent of the original landlord.

Virginia Laws Regarding Sublease Agreements

When subletting a property, the potential tenant must understand that the residential property laws in Virginia are not the same as they would be in Maryland or DC. Any sublease agreement that does not conform to Virginia law may be found invalid.
First, the subtenant must be aware that in Virginia a landlord essentially has all of a tenant’s legal rights and obligations under the lease agreement. This means that even though the subtenant is now leasing the property from the original tenant, the landlord could hold either one of them responsible, at any time, for any provision of the lease of the original tenant.
A sublease agreement is created when a tenant leases a property from a landlord and then rents it to someone else. For example, if you rented an apartment and then rent the apartment to someone else, that is a sublease agreement. The terms of the sublease will vary based on the agreement that you have with the landlord.
In Virginia, any type of lease agreement including a sublease agreement must be in writing if it is longer than one year. Since most leases are longer than one year this means that almost all leases in Virginia should be in writing.
All unaltered lease provisions shall apply to the sublease agreement. Landlords can restrict subleasing from the original tenant and having the right to terminate the lease with the subtenant as if they were the original tenant.
Any agreement entered into by the original tenant and their subtenant or subleasee is void if it was without the landlord’s permission. Because of this, the original tenant would not be able to rent the property to a third party without the permission of the landlord. If the landlord does allow the agreement between the tenant and the subtenant, then the actions of the subtenant are also going to apply to the original tenant.
If the subtenant fails to abide by the provisions of the lease between the original tenant and the landlord then the landlord reserves the right to hold either him or her responsible.
The state law that governs subleasing in Virginia is the Residential Landlord and Tenant Act. This law discusses any lease agreement that deals with single-family houses, duplexes, apartments, and condominiums. The law does not apply to transient occupancy agreements.

Elements of a Virginia Sublease Agreement

1. Parties to the Agreement

Parties demarcated as "tenant" and "subtenant" in the sublease agreement where the tenant retains the landlord written lease agreement. A landlord fixated on compensation may omit any separate mention of their involvement in the sublease agreement.

2. Property

Make, model, address, and features of premises within the property, including an allocation of any features defined as common areas.

3. Term

The term is stipulated as a time interval during which payment is required, for example "1 year" or "8/1/2017 – 12/31/2019".

4. Monthly Rent

May be broken down into variables such as "fleas", "disruption of peaceful enjoyment", and "aggravating neighbors" but should contain one simple figure for simplicity unless otherwise agreed.

5. Security Deposit

Often cited as the line item "absolution from liability for damage or theft" but here it means the amount of money held in escrow to cover those items.

6. Utilities for which Tenant is Responsible.

May include cable bills, gas, and a portion of internet. It is rare for a subtenant to cover the entire utility bill as the area may have to be illuminated constantly.

7. Utilities for which Landlord/Master Tenant is Responsible

Includes water, sewage, and heating. Under extreme duress the master tenant can absolve themselves from responsibility.

8. Legal Jurisdiction

This is the paragraph in the sublease agreement that allows the landlord to recoup 10X the amount of the value of the security deposit in the event the subtenant decides to depart without notice.

Parties’ Rights and Responsibilities

Section 6 – Rights and Responsibilities of the Parties Involved
Beyond the general purpose and formation of sublease agreements, parties should also familiarize themselves with the rights and responsibilities that they have under Virginia law.
Original tenants, subtenants, and landlords all have obligations that can impact sublease agreements, including the following:
Rights and Responsibilities of Landlords in Virginia
A landlord is defined as "the owner of a rental unit who will rent the unit to another." In order for a sublease agreement to exist, the landlord must at one point have approved a lease with the original tenant. The original tenant is known as the "tenant" while the landlord is the "sublessor."
Virginia law protects the interests of both those who are given the right to occupy the property through a sublet and those who own the property being rented. Virginia Code § 55-248.2 defines these interested parties as follows:
While a subtenant has the right to use the property, the landlord has an undeniable right of access, in most circumstances.
Responsibilities of Original Tenants
For purposes of this section, a "tenant" is a person who entered into a rental unit and has not assigned any of his or her interest. When property is subject to a lease, the landlord and tenant form a contractual agreement that is legally binding. As such, the tenant cannot simply leave the property for a period of time-his or her obligations remain.
Under the law, a tenant has the following responsibilities:
Subtenant Rights and Responsibilities
A "subtenant" is a person who occupies a rental unit through a lease with the tenant who initially entered into an agreement with the landlord. As a subtenant, a person obtains the landlord’s permission to occupy the property, creating a sublease agreement.
The duties of a subtenant include the following:

Common Mistakes and How to Avoid Them

One common issue in sublease agreements is a failure to obtain permission from the landlord before proceeding with the sublease. In Virginia, a lessee must get the lessor’s prior written approval of both the sublease and the sublessee. If the lessee fails to do so, the lessor may make a claim against him or her, but may not assume that the sublease is void. Although that means that in Virginia it is not a "fatal flaw" for a lessee to enter a sublease without the lessor’s consent, the lessor will almost certainly use that as a lever to increase the rent or security deposit (or both), or the term of the lease. The best way to avoid this pitfall is to check the existing lease , and to make sure that all of the necessary paperwork is completed and submitted to the lessor.
Another commonly underestimated aspect of a sublease in Virginia is an understanding of when a sublease can be terminated. A sublease in Virginia does not terminate when the lease between the lessor and the lessee expires. In other words, a lessor may not terminate the original lease between a lessor and lessee just because the lessee has entered into a sublease with a new tenant. In this case, it is the terms of the sublease that control, so be sure to read and understand it before you sign up for it.
The most significant overlap between a sublease and a lease is the obligation of the parties to pay rent. Whether this obligation is met is largely determined by the sublease. However, it is critical for the lessee to understand and fulfill this obligation under the original lease, or risk liability for breach of the lease.

How to Draft a Valid Sublease Agreement

To create a valid sublease that binds both the original tenant and the subtenant, certain steps must be followed.

• The tenant must obtain consent from the landlord. This is usually a simple matter of asking for permission from the landlord. The landlord may have a consent form available, or one may be created. It should contain language protecting the landlord in case the subtenant violates the lease or causes damage. A good lease or rental agreement will also contain a clause allowing the tenant to assign the lease or sublease the premises upon the landlord’s consent. For example, a landlord may want to be sure the person they are renting to has a suitable credit history. If the lease does not expressly require the landlord’s consent, it is offered simply as a courtesy and not a requirement.
• The subtenant and the tenant should negotiate the terms of the sublease, filling in the blanks for rent, term, etc. The sublease should contain all the same obligations as the lease between the tenant and landlord, so the tenant can enforce those terms against the subtenant if necessary. For example, if a company subleases an office suite to another company, the first company should have the same right as the landlord to terminate the sublease if the subtenant fails to pay rent. The sublease is generally considered enforceable the same as the original lease, because the subtenant agrees to be bound by every provision of the lease.
• Pre-print the terms of the sublease onto a printed form or create a template that contains blanks for parties to fill in. This will save time because the attorney will not need to draft a sublease from scratch each time one is needed.
• The tenant and subtenant should sign the sublease and the tenant should give it to the landlord.
• The tenant should keep a copy of the sublease for his own records.

Conflict Resolution in a Virginia Sublease

Disputes relative to a Virginia sublease agreement may arise, not only between a landlord and the original tenant, but also between the original tenant and the subtenant. In some instances, there may be fraud involved in the initial principal tenancy that renders the entire agreement void even before the sublease is signed. (There are rare circumstances, however, where the fraudulent actions of the original tenant does not affect the validity of the landlord-tenant relationship itself, but only the relationship between the original tenant and the subtenant.)
In most cases, remedies under a sublease agreement between the original tenant and the subtenant include covenant of quiet enjoyment, or constructive eviction.
By subletting the property, the original tenant has impliedly represented that the property is habitable. Should the original tenant fail to do so, and a breach occurs, the subtenant may have a right to a constructive eviction from the property.
In Virginia, constructive eviction exists if: (1) the landlord or original tenant interferes with the tenant’s use and enjoyment of the demised premises; (2) the interference is so pervasive that new renting is impossible; and (3) the tenant gives notice to the landlord or original tenant of the breach and vacates the premises.
In the event that the landlord or original tenant is unable or unwilling to resolve the dispute, or if the dispute cannot be resolved out of court through negotiation or mediation, judicial remedies are sometimes available to the tenant under the theory of tortious interference with contract or business expectancy. This claim may arise in a variety of contexts, for example, where the subtenant must bring suit against a third party for trespassing upon the property.
Since Virginia does not have any governmental body or agency to which it can turn for dispute resolution, a subtenant has the same rights under Virginia law as the original tenant. It is recommended that any dispute be resolved through negotiation or out of court through mediation.

Common Questions About Sublease Agreements in Virginia

What is the difference between an assignment and a sublease?
In Virginia, a sublease occurs when the leased premises are transferred from a tenant to a new tenant (or subtenant) for the remainder of the original term of the lease. The sublease creates a second agreement with the same terms as the original lease. An assignment transfers all rights in the leased premises from one tenant to another.
The practical difference is that, if the sublease is properly executed, the original tenant or landlord is not liable for the performance of the subleases terms and conditions. However, with an assignment, the original tenant remains fully responsible for all terms of the lease. In either scenario, the assignee or subtenant is always liable for any damages done to the property while in their possession.
Will my landlord agree to a sublease?
Virginia law does not require your landlord to agree to a sublease, even if you have the right to sublease under your lease. Whether or not your landlord will allow you to sublease is up to their discretion and depends heavily on the willingness of the proposed subtenant to become a good tenant. Good credit and references can go a long way to ensuring that your landlord is willing to allow the lease to be held for a longer period of time . Even if your lease does not contain a requirement that your landlord consent to the sublease—or even if you do not need your landlord’s consent to sublease – it is a business-friendly decision to ask for your landlord’s consent regardless. However, if your lease requires your landlord’s permission, then that requirement must be met or the lease could be terminated for default.
Do I need to worry about getting an eviction notice from my landlord for my subtenant?
If they are evicted, yes. If you have properly subleased the property according to your lease terms, then your landlord can only evict your subtenant if they fail to pay rent or violate the lease in some way. If you are properly subletting your property, then the eviction would be styled against your subtenant and not you, and the sublease would be terminated (if the subtenant lost). As the original lessee, however, you could still be responsible under your lease for any damages to the property or any unpaid rent. And, if your original lease agreement is terminated because of the subtenant, your liability could be extended to include the unpaid rent for the remaining term of the lease. Thus, you should always try to select a financially sound subtenant who will not default on his or her lease. However, even if the subtenant enters into a lease with a co-signer, that only pushes the risk onto another party and is not a complete guarantee against loss by the original lessee.