Legal Question in Real Estate Law in California

Re: Residental subletting in California

To start, what you're proposing to do would be considered an "assignment" of the lease, rather than a "sublease;" a sublease is when the primary tenant surrenders less than all of his right to another, e.g. partial occupancy in space or time. If you turn over 100% of the remaining right of possession, both as to time and extent of occupancy, it's an assignment.

Anyway, most residential leases will contain a provision attempting to restrict the tenant's right to sublease or assign. Without such a restriction, the tenant would have the complete and unfettered right to sublease or assign.

Even with the restriction, which may be worded, "Tenant shall not sublease or assign this lease without the express prior approval of Landlord. Any purported sublease or assignment is void." the common law and the policy of California probably will supply, by implication, the following addition sentence: "Such prior approval shall not unreasonably be delayed or withheld."

The underlying policy of the law is that unreasonable restrictions on the alienation of interests in real property is a drag on commerce and an unfair imposition on the rights of property owners and tenants to use their property as they see fit, including substituting another in possession under the original lease.

So, I think the bottom line is that whatever the lease says, you are entitled to assign to a high-quality replacement tenant. The landlord could probably refuse to recognize an assignment to a tenant that was likely to be a problem.

I would be very up-front with the landlord from the get-go, making sure he/she/it understood the reasons for the assignment and had a chance to review the proposed assignee's credentials. You could also remind the landlord about the policy of the law to deny landlords the right to refuse reasonable assignments or subleases, irrespective of the language in the lease.

Re: Residental subletting in California

If the lease does not restrict the right to sublet, it is legal.