When a tenant decides to move before a lease has expired, he or she may find subletting a feasible option to conserve as much rent money as possible. How should a landlord respond to a tenant’s request to sublet?
The first place to look for the answer is the lease document. The lease may be silent on the issue and prevent subletting without the landlord’s consent. Or, it might require consent but provide that the landlord’s consent may not be unreasonably withheld. It might even say that the landlord’s consent may not be “unreasonably withheld, delayed or conditioned.”
In the absence of an express restriction in a lease prohibiting an assignment, a tenant has the right to freely sublease or assign and may even assign or sublease without notifying the landlord. Consequently, at a minimum, landlords should always include a provision in the form lease requiring tenants to notify them of an assignment or sublease so they know the identities of their new tenants.
Under Illinois law, when a lease requires consent to allow the tenant to sublease, the landlord cannot unreasonably withhold it. Many landlords mistakenly believe that the absence of the phrase “not to be unreasonably withheld” from the assignment / sublease provision gives them the right to withhold consent in their sole discretion. Under Illinois law, that is not the case because the standard of reasonableness is required without an explicit statement of the requirement in the lease.
If a landlord acts unreasonably and doesn’t consent to an assignment or sublease when it should, the landlord risks a judgment for damages in favor of the tenant.
Landlords should understand that the reasonableness requirement exists under Illinois law and act accordingly when faced with requests for subletting consent. For assistance with landlord-tenant matters or lease concerns, please call or email our office today.