What is subletting?

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What is subletting?

Subletting is when a tenant who is currently renting a property on an existing lease rents the same property out to a third party with financial compensation. Learn more about the basics of subletting in France with this guide.

Depending on the specific terms of the lease, tenants are free to share or even rent out the property they're currently renting to other people. But when they earn from it, that's when it becomes subletting. The important distinction here is that the tenant who is subletting the property earns financial compensation. But if they are simply letting others, be they friends or family, stay in the property without earning anything, that is not considered subletting

In the same vein, any tenant who leaves the property at the hands of a third party, even though they're still the ones paying the rent, will still be considered subletting. To be more clear about whether what you're doing is subletting or not, it's best to check with the owner/landlord first, consult with your agency (if you hired one to help you rent the property), or know the real estate laws of the area of the property.
Is subletting permitted by law?
For the most part, subletting is legal in France. But while it's not prohibited, it is regulated. Tenants who wish to sublet the property they're currently renting are encouraged to let the owner/landlord know. Oftentimes, this is a requirement imposed by the local municipality. 

Do note that it is strictly forbidden to sublet low-rent housing except for the following specific cases:
  • The tenant-lessor is an association or a social organization established for vulnerable groups (i.e. students, people with disabilities, senior citizens, etc.)
  • The subtenant is part of a vulnerable group (students, people with disabilities, senior citizens, etc.) or is approved by the General Council. 

According to the ELAN Law of 2019, tenants aged 60 and above are permitted to sublet part of their rented property to young people under the age of 30. This is called Solidarity Intergenerational Cohabitation. In exchange, the subtenant pays part of the rent and performs certain tasks to help the elderly with their daily lives. 

What the law tells us and its exception

Article 8 of Law 89-462 (instituted back on July 6, 1989) explicitly states that “The tenant may neither assign the rental contract nor sublet the dwelling except with the written agreement of the lessor, including the price of the rent.”

In addition, the law also requires the tenant to stay in the property because it must remain their main residence in France.

The owner/landlord can decide whether or not to allow the tenant to sublet the property. They reserve the right to refuse if they do not want to grant permission. But if they do allow the subletting of their property, they must confirm and submit it in writing. The owner/landlord also has the right to set the amount for the rent of the sublet. This will especially indicate that the rent of the sublet may in no case exceed that of the rental and avoid any speculation on the part of the tenant. And once the owner/landlord has granted permission to sublet, the tenant will then have to carry out the required steps to make it legal. For instance, if the tenant intends to sublet the property for holiday leases, they have to declare it to the town hall and pay the tourist tax.

Do note that in the bigger French cities, especially in Paris, you can only rent out your main residence on a holiday lease for a maximum of 120 days (approximately 4 months). In addition, you have to declare the holiday lease (and subletting if this is the case) to City Hall. 

What are the advantages of subletting?

  • The tenant gets to earn financial compensation when they sublet the property.
  • Subletting allows the tenant to be away (in light of certain situations) from the property without terminating their current lease.
  • The subtenant gets to stay in temporary accommodations while they're in the process of looking for a new residence. 
  • Subtenants don't have to pay a security deposit, financial guarantee, or agency fees.

What are the risks for tenants and subtenants? 

For The Subtenant
  • The provisions laid out in Law 89-462 of July 6, 1989, do not apply to subtenants. They cannot enjoy the same rights as the standard tenant. 
  • Unwritten contracts and agreements are also common in subletting, which comes with its own sets of risks (scams, no proof of payment, etc.)
  • In the case of no rental receipts, the subtenant won't have this requirement when they plan to apply for another rental. 
  • If the lease of the standard tenant is terminated, the subtenant will also lose the right to remain in the property. 
  • As there is no direct and legal relationship between the subtenant and the owner, the former can't directly communicate with the latter in the event of major work needed on the property.

For The Tenant
  • The tenant remains the one liable for any damage done to the property. 
  • Illegal subletting comes with heavy financial penalties that the tenant has to answer for.
  • If there are no written agreements between the tenant and subtenant, the former has no way to sue the latter in case of violated terms (unpaid bills, unpaid damages, nuisances, etc.).
  • The tenant risks terminating the lease with the owner/landlord because of the subtenant.

What is the legal framework for subletting?

In principle, the subletting of an empty dwelling is prohibited according to article 8 of the law of 6 July 1989 on leases of main residence, unless the owner gives his agreement. 

The main tenant and the subtenant must agree on the terms of the lease and include them in the contract: duration of the lease, terms of termination, amount and date of payment of the rent, amount and conditions of return of the security deposit, obligations of each party towards both, etc.

The tenant will attach the landlord's written agreement to the sublease agreement as well as a copy of the main contract. The tenant must carefully draft this contract which will set all the terms of the subletting and which is framed by the provisions of the Civil Code. Indeed, this contract is governed by the Civil Code which lays down, in article 1717, the principle of a "right to sublet" for the tenant, "if this option has not been prohibited".

How is the APL calculated in a sublease?

Since January 10, 2020, some subtenants can benefit from the APL, just like the tenant. This measure stems from the ELAN Law of 2018.

In accordance with Article D823-18 of The Construction and Housing Code, the APL in the case of a sublet is calculated as follows:
  • For the Subtenant: the aid will be based on the amount of rent paid.
  • For the Standard Tenant: the aid will be based on the amount of the main rent minus the rent from the subtenant.

Can I ask for a security deposit from the subtenant?

The standard tenant of a rental can legitimately request a rental guarantee, also known as a security deposit, from their subtenant(s). Although this is not a legal obligation, the rental guarantee is often a requirement by owners/landlords. And in the same principle, tenants who intend to sublet the property can also set the same requirement. 

Ce qu’il faut retenir :
  • Subletting is the practice wherein the tenant of a rented property—with an ongoing lease—rents out said property to a third party and earns financial compensation. 
  • The subtenant, like the standard tenant, can benefit from APL.
  • The standard tenant of the property can legitimately request a rental guarantee but this is not a legal obligation.
  • According to Law 89-462 of July 6, 1989, the subletting of unfurnished rentals with established main residence leases is prohibited unless granted permission by the owner/landlord. 
  • Subletting has some advantages but also risks for both the main tenant/s and subtenant/s.

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