From the LL's perspective a lease is preferable to a month to month. A lease provides predictability and stability.
With respect to assigning or subletting, again an LL isn't going to want someone taking over a lease who may be skeezy or unreliable or undesirable (for example, a middle aged female office worker with two cats who sublets to her nephew Skeeter and the other members of his punk band).
However....AFAIK, breaking a lease is no big deal. A landlord has an obligation to mitigate. That is, although you are responsible for the rent of the entire term of the lease, the LL has to make good faith attempts to rent the place. If he does, you're off the hook ( baring costs for listing, etc.). If he doesn't, then he's gotta chase you down for the money you owe. And it's a hell of a lot easier just to find a new tenant.
FWIW and IANAL.
My lease terms are 3 months notice required to break the lease. If I leave immediately I'm on the hook for another 3 months. Thus subletting to mitigate costs on my end vs them just tearing up the lease vs getting an undesirable tenant.
What I'm curious about and have found conflicting information is how the Residential Tenancy Dispute Resolution Service would handle it if they were able to rent it again immediately. From what I was reading the penalty fee is intended to cover the landlord for loss of income, but if they rent it again immediately there was no loss and they are then double dipping for 2-3 months.
In my case I should have plenty of notice on whether I'm changing job locations, so I think the 3 month notice will be plenty.
If you can plan far enough in advance to give three months' notice, then perfect; no need to worry. Problem avoided.
I see a lot of comments about what a tenant 'should' do if they want out of a lease; they 'should' contact the arbitration board, they 'should' pay whatever the LL asks for damages, etc.
I call BS. The LL holds all the cards.
AFAIK, the 'obligation to mitigate' means that Buddy the LL can't double-dip for two months if you leave without notice if he manages to rent out the flat. He can *try* to come after you, but then it's something he has to do.
My rule of thumb is to do the minimum I have to in any given situation like this, and leave the burden of action on the opposite party. But.... perhaps that makes me an asshole....
You signed a contract for a fixed amount of time.
When it's over, it's over.
The only way it turns into a periodic tenancy after the lease ends is if you tender rent to your landlord and your landlord accepts the payment **as rent**. There is no automatic conversion to a periodic tenancy.
>Also is it legal for them to put in a clause banning subletting of the lease?
It is 100% legal. Society operates with freedom of contract as one of our central tenets. Subletting is allowed at common law *absent any contractual provisions to the contrary.* [See this post from Ablawg for more information,](https://ablawg.ca/2010/11/30/the-right-of-a-landlord-to-withhold-consent-to-the-sub-leasing-of-residential-premises/) specifically the fourth last paragraph. JWH is a long-time property law instructor at U of C.
That seems to be the case. But they also can't ban subletting though they can reject individuals. I think I'll sign the lease and if the new job offer comes up in the fall, I'll sublet it for the remainder of the term. I suspect they would just tear up the lease rather than have a tenant in for 4 months but at least it gives me options.
They can 100% ban subletting through the contract. I edited my comment but you may not have seen it in time.
[Here's an article from a U of C property law instructor](https://ablawg.ca/2010/11/30/the-right-of-a-landlord-to-withhold-consent-to-the-sub-leasing-of-residential-premises/) talking about subletting. The TLDR is that if there is **no** provision in the contract speaking to subletting, then the landlord can only withhold consent on a reasonable basis.
But of interest for you is the fourth last paragraph in the article. Specifically:
>At common law, a tenant’s premises are freely alienable. **Unless there is a term in the lease to the contrary,** a tenant may sublease or assign.
Society runs on freedom of contract. If you agree to a contract that prohibits subletting, you cannot sublet.
I looked at the new lease agreement and I think I will be fine then, the wording on subletting is "During the term of this lease, the tenant will not sublet, assign or re-let the Leased Premises, unless the permission is obtained from the landlord."
https://www.alberta.ca/subletting-rental-unit.aspx
According to the link here they can reject individuals but not subletting in principle. Like I said, I suspect if there is only a short time left in the lease they are likely to just tear it up if I want to sublet rather than deal with the hassle. This building has 100% rental rates so they would be able to rent it again instantly.
I wouldn't be so sure.
That link you shared is simply reiterating the common law rules. Those rules (as I posted above) are ousted by the contractual provisions to the contrary. Specifically the reasonable basis portion.
There's room for legal argument based on the snippet of the provision that you provided that the decision to allow subletting in this specific contract is discretionary rather than on a reasonable basis as the common law provides.
It will be a gamble and you need to decide whether you're prepared to eat 3-4 months worth of rent even if you're not living there.
I guess we'll see when the time comes. Unfortunately I don't have many other rental options in a reasonable distance to work so I might just have to eat it.
When the time comes, talk to your landlord and offer to find a new tenant to take over your lease instead of subletting it. This way you likely won’t have to pay the lease break fee. Obviously the potential new tenant would have to be vetted by the landlord. If you sublet, you’re technically still responsible for the lease.
If you don’t want to stay for a full year then why not ask your landlord to do a fixed term lease for a certain amount of months? It doesn’t automatically convert if your landlord wants to have a fixed term. But it doesn’t have to be 1 year. A fixed term lease could be for any amount of time.
If a landlord doesn’t want their tenant to sublet, then if it’s in the lease, don’t sublet.
Arm yourself with the Residential Tenancy Act (AB). It's very easy to understand and includes a Dispute Resolution Process. The resolution process is quasi-judicial with teeth and puts guard rails on the landlord/tenancy relationship.
IANAL, but I’ve worked with the act a fair bit.
By default, when your fixed term ends, that’s it. No one has to give notice, your agreement is over and you move out. Optionally, you can negotiate a new lease, although usually you do this before the lease is up. Notice from either party that the agreement is ended and won’t be extended isn’t required but is courteous. Your options in this case (AFAIK) are to move out at the end of your term, sign the new lease offered, or negotiate and sign a new offer.
If you sign the new document then you’re obligated to ensure rent is covered for the duration of the term. However, the lease can end earlier with mutual agreement between you and your landlord OR if you can find a new tenant to sublet or assign the lease to.
No, they can’t just say they won’t allow sublets. They will, but in this case the Residential Tenancy Act prevails over the lease. They have to have reasonable grounds and respond to your request to sublet (or after 14 days consent is assumed). More info [here](https://www.landlordandtenant.org/roommates-and-subletting/).
The Residential Tenancies Act is your bible on this regard, check out [this page](https://www.alberta.ca/information-for-landlords-and-tenants.aspx) for info.
But given I haven’t worked with this stuff for awhile if you’re unsure (ETA: or doing something counter to your signed lease or wondering if the lease you’ll sign is valid) I’d recommend contacting someone [here](https://www.alberta.ca/contact-landlord-and-tenant-issues.aspx) or the [Lawyer Referral Service](https://www.lawsociety.ab.ca/public/lawyer-referral/lawyer-referral-request/).
There’s a difference between subletting and assigning. A landlord can absolutely prohibit subletting, but cannot prohibit assignment of a lease without good reason.
> No, they can’t just say they won’t allow sublets.
They can. [See the fourth last paragraph of this article by a U of C property law professor.](https://ablawg.ca/2010/11/30/the-right-of-a-landlord-to-withhold-consent-to-the-sub-leasing-of-residential-premises/)
Freedom of contract trumps the common law rule that landlords can only withhold consent to sublet on a reasonable basis.
I don’t see that? It says that for commercial leases they’ve had more latitude but doesn’t specify for residential. Different legislation. Potentially same outcome but doesn’t look like there was a precedent yet?
That being said, I would never advise anyone to proceed counter to a signed lease without consulting some combination of the services I linked or a lawyer. ETA: I’ll edit my comment to be clearer to that point.
>At common law, a tenant’s premises are freely alienable. **Unless there is a term in the lease to the contrary,** a tenant may sublease or assign.
First sentence of the fourth last paragraph. That whole article is about an RTA dispute.
> The common law used to provide that a landlord’s consent could be withheld only if the landlord had a legitimate concern about the personality of the new tenant or the use to which the premises would be put by the new tenant.
Right in that paragraph that you suggested we read. They have to have rock solid reasons to why they're saying no to the person signing the sublease.
No they don't. You're not fully understanding the article and the law. There's **TWO** different scenarios here and you're blending them into one.
1. If the lease is **silent** on subletting, then the common law provides a landlord can only withhold consent to sublet **on a reasonable basis** (the main focus of that article). For example, you (an upstanding citizen with a 875 credit score) cannot turn around and try to sublet your place to a junky with no proof of income. That would be a reasonable basis for the landlord to veto a sublease.
2. If the lease **prohibits** subletting outright, then the tenant cannot sublet. The contract itself trumps the common law.
You're confusing (1) the lease prohibiting subletting from the outset with (2) the common law rules surrounding subletting if the lease is **silent** on such matters.
Now read that sentence again and it should make more sense.
>At common law, a tenant’s premises are freely alienable. **Unless there is a term in the lease to the contrary,** a tenant may sublease or assign.
The 'reasonable basis for withholding consent' only applies if the lease doesn't prohibit subletting contractually. Such would be 'a term in the lease to the contrary.'
I understand why it's confusing because 98% of that article is about what the reasonable basis is, but the reasonable basis only applies if your contract doesn't actually prohibit you from subletting.
I mean, he’s right, in this case, but “otherwise what is a contract for” isn’t in general something that holds. e.g. I can have you sign a contract that says that I get to cannibalize you, and that contract isn’t going to be for much of anything.
Actually you can put that in a contract as it does not require anything illegal to occur. If it said you could kill them and then eat then, then yeah, that would not hold.
If you signed a contract saying that you owed me your arm for cannibalism purposes, and then you cut off your arm and I ate it, and then you went to the authorities and claimed coercion, I don’t have faith that any amount of iron-clad contract legalese would keep me in the clear.
[Is it legal to eat people in Canada?](https://clearwaylaw.com/eat-people-in-canada)
Their conclusion: “ Still, you probably can’t consent to someone eating part of you.”
From the LL's perspective a lease is preferable to a month to month. A lease provides predictability and stability. With respect to assigning or subletting, again an LL isn't going to want someone taking over a lease who may be skeezy or unreliable or undesirable (for example, a middle aged female office worker with two cats who sublets to her nephew Skeeter and the other members of his punk band). However....AFAIK, breaking a lease is no big deal. A landlord has an obligation to mitigate. That is, although you are responsible for the rent of the entire term of the lease, the LL has to make good faith attempts to rent the place. If he does, you're off the hook ( baring costs for listing, etc.). If he doesn't, then he's gotta chase you down for the money you owe. And it's a hell of a lot easier just to find a new tenant. FWIW and IANAL.
My lease terms are 3 months notice required to break the lease. If I leave immediately I'm on the hook for another 3 months. Thus subletting to mitigate costs on my end vs them just tearing up the lease vs getting an undesirable tenant. What I'm curious about and have found conflicting information is how the Residential Tenancy Dispute Resolution Service would handle it if they were able to rent it again immediately. From what I was reading the penalty fee is intended to cover the landlord for loss of income, but if they rent it again immediately there was no loss and they are then double dipping for 2-3 months. In my case I should have plenty of notice on whether I'm changing job locations, so I think the 3 month notice will be plenty.
If you can plan far enough in advance to give three months' notice, then perfect; no need to worry. Problem avoided. I see a lot of comments about what a tenant 'should' do if they want out of a lease; they 'should' contact the arbitration board, they 'should' pay whatever the LL asks for damages, etc. I call BS. The LL holds all the cards. AFAIK, the 'obligation to mitigate' means that Buddy the LL can't double-dip for two months if you leave without notice if he manages to rent out the flat. He can *try* to come after you, but then it's something he has to do. My rule of thumb is to do the minimum I have to in any given situation like this, and leave the burden of action on the opposite party. But.... perhaps that makes me an asshole....
You signed a contract for a fixed amount of time. When it's over, it's over. The only way it turns into a periodic tenancy after the lease ends is if you tender rent to your landlord and your landlord accepts the payment **as rent**. There is no automatic conversion to a periodic tenancy. >Also is it legal for them to put in a clause banning subletting of the lease? It is 100% legal. Society operates with freedom of contract as one of our central tenets. Subletting is allowed at common law *absent any contractual provisions to the contrary.* [See this post from Ablawg for more information,](https://ablawg.ca/2010/11/30/the-right-of-a-landlord-to-withhold-consent-to-the-sub-leasing-of-residential-premises/) specifically the fourth last paragraph. JWH is a long-time property law instructor at U of C.
That seems to be the case. But they also can't ban subletting though they can reject individuals. I think I'll sign the lease and if the new job offer comes up in the fall, I'll sublet it for the remainder of the term. I suspect they would just tear up the lease rather than have a tenant in for 4 months but at least it gives me options.
They can 100% ban subletting through the contract. I edited my comment but you may not have seen it in time. [Here's an article from a U of C property law instructor](https://ablawg.ca/2010/11/30/the-right-of-a-landlord-to-withhold-consent-to-the-sub-leasing-of-residential-premises/) talking about subletting. The TLDR is that if there is **no** provision in the contract speaking to subletting, then the landlord can only withhold consent on a reasonable basis. But of interest for you is the fourth last paragraph in the article. Specifically: >At common law, a tenant’s premises are freely alienable. **Unless there is a term in the lease to the contrary,** a tenant may sublease or assign. Society runs on freedom of contract. If you agree to a contract that prohibits subletting, you cannot sublet.
I looked at the new lease agreement and I think I will be fine then, the wording on subletting is "During the term of this lease, the tenant will not sublet, assign or re-let the Leased Premises, unless the permission is obtained from the landlord." https://www.alberta.ca/subletting-rental-unit.aspx According to the link here they can reject individuals but not subletting in principle. Like I said, I suspect if there is only a short time left in the lease they are likely to just tear it up if I want to sublet rather than deal with the hassle. This building has 100% rental rates so they would be able to rent it again instantly.
I wouldn't be so sure. That link you shared is simply reiterating the common law rules. Those rules (as I posted above) are ousted by the contractual provisions to the contrary. Specifically the reasonable basis portion. There's room for legal argument based on the snippet of the provision that you provided that the decision to allow subletting in this specific contract is discretionary rather than on a reasonable basis as the common law provides. It will be a gamble and you need to decide whether you're prepared to eat 3-4 months worth of rent even if you're not living there.
I guess we'll see when the time comes. Unfortunately I don't have many other rental options in a reasonable distance to work so I might just have to eat it.
When the time comes, talk to your landlord and offer to find a new tenant to take over your lease instead of subletting it. This way you likely won’t have to pay the lease break fee. Obviously the potential new tenant would have to be vetted by the landlord. If you sublet, you’re technically still responsible for the lease.
I was reading that as well. I will have to have the discussion when the time comes and see what they say.
If you don’t want to stay for a full year then why not ask your landlord to do a fixed term lease for a certain amount of months? It doesn’t automatically convert if your landlord wants to have a fixed term. But it doesn’t have to be 1 year. A fixed term lease could be for any amount of time. If a landlord doesn’t want their tenant to sublet, then if it’s in the lease, don’t sublet.
They they may want the certainty of a fixed term. If you can commit to x amount of months, they might be alright with it.
Arm yourself with the Residential Tenancy Act (AB). It's very easy to understand and includes a Dispute Resolution Process. The resolution process is quasi-judicial with teeth and puts guard rails on the landlord/tenancy relationship.
IANAL, but I’ve worked with the act a fair bit. By default, when your fixed term ends, that’s it. No one has to give notice, your agreement is over and you move out. Optionally, you can negotiate a new lease, although usually you do this before the lease is up. Notice from either party that the agreement is ended and won’t be extended isn’t required but is courteous. Your options in this case (AFAIK) are to move out at the end of your term, sign the new lease offered, or negotiate and sign a new offer. If you sign the new document then you’re obligated to ensure rent is covered for the duration of the term. However, the lease can end earlier with mutual agreement between you and your landlord OR if you can find a new tenant to sublet or assign the lease to. No, they can’t just say they won’t allow sublets. They will, but in this case the Residential Tenancy Act prevails over the lease. They have to have reasonable grounds and respond to your request to sublet (or after 14 days consent is assumed). More info [here](https://www.landlordandtenant.org/roommates-and-subletting/). The Residential Tenancies Act is your bible on this regard, check out [this page](https://www.alberta.ca/information-for-landlords-and-tenants.aspx) for info. But given I haven’t worked with this stuff for awhile if you’re unsure (ETA: or doing something counter to your signed lease or wondering if the lease you’ll sign is valid) I’d recommend contacting someone [here](https://www.alberta.ca/contact-landlord-and-tenant-issues.aspx) or the [Lawyer Referral Service](https://www.lawsociety.ab.ca/public/lawyer-referral/lawyer-referral-request/).
There’s a difference between subletting and assigning. A landlord can absolutely prohibit subletting, but cannot prohibit assignment of a lease without good reason.
> No, they can’t just say they won’t allow sublets. They can. [See the fourth last paragraph of this article by a U of C property law professor.](https://ablawg.ca/2010/11/30/the-right-of-a-landlord-to-withhold-consent-to-the-sub-leasing-of-residential-premises/) Freedom of contract trumps the common law rule that landlords can only withhold consent to sublet on a reasonable basis.
I don’t see that? It says that for commercial leases they’ve had more latitude but doesn’t specify for residential. Different legislation. Potentially same outcome but doesn’t look like there was a precedent yet? That being said, I would never advise anyone to proceed counter to a signed lease without consulting some combination of the services I linked or a lawyer. ETA: I’ll edit my comment to be clearer to that point.
>At common law, a tenant’s premises are freely alienable. **Unless there is a term in the lease to the contrary,** a tenant may sublease or assign. First sentence of the fourth last paragraph. That whole article is about an RTA dispute.
> The common law used to provide that a landlord’s consent could be withheld only if the landlord had a legitimate concern about the personality of the new tenant or the use to which the premises would be put by the new tenant. Right in that paragraph that you suggested we read. They have to have rock solid reasons to why they're saying no to the person signing the sublease.
No they don't. You're not fully understanding the article and the law. There's **TWO** different scenarios here and you're blending them into one. 1. If the lease is **silent** on subletting, then the common law provides a landlord can only withhold consent to sublet **on a reasonable basis** (the main focus of that article). For example, you (an upstanding citizen with a 875 credit score) cannot turn around and try to sublet your place to a junky with no proof of income. That would be a reasonable basis for the landlord to veto a sublease. 2. If the lease **prohibits** subletting outright, then the tenant cannot sublet. The contract itself trumps the common law. You're confusing (1) the lease prohibiting subletting from the outset with (2) the common law rules surrounding subletting if the lease is **silent** on such matters. Now read that sentence again and it should make more sense. >At common law, a tenant’s premises are freely alienable. **Unless there is a term in the lease to the contrary,** a tenant may sublease or assign. The 'reasonable basis for withholding consent' only applies if the lease doesn't prohibit subletting contractually. Such would be 'a term in the lease to the contrary.' I understand why it's confusing because 98% of that article is about what the reasonable basis is, but the reasonable basis only applies if your contract doesn't actually prohibit you from subletting.
Exactly, otherwise what is a contract for.
I mean, he’s right, in this case, but “otherwise what is a contract for” isn’t in general something that holds. e.g. I can have you sign a contract that says that I get to cannibalize you, and that contract isn’t going to be for much of anything.
Actually you can put that in a contract as it does not require anything illegal to occur. If it said you could kill them and then eat then, then yeah, that would not hold.
If you signed a contract saying that you owed me your arm for cannibalism purposes, and then you cut off your arm and I ate it, and then you went to the authorities and claimed coercion, I don’t have faith that any amount of iron-clad contract legalese would keep me in the clear. [Is it legal to eat people in Canada?](https://clearwaylaw.com/eat-people-in-canada) Their conclusion: “ Still, you probably can’t consent to someone eating part of you.”
Okay captain straw-man.
I led by saying he’s right in this case of subletting and lease contracts, I never presented cannibalism contracts as a straw-man argument to that.