Irregular Subletting: What Effects Between Tenant and Subtenant?

Imagine the scene: in Rixheim, Haut-Rhin, a tradesman sublets part of his premises to a craftsman. The landlord was never informed nor gave his consent. One day, the landlord discovers the subletting and demands the immediate eviction of the subtenant. But can the subtenant, who pays his rent to the head tenant, be thrown out overnight?

This is the question every landlord asks: is an irregular subletting (i.e., without authorisation) completely void? And does the subtenant, who signed a contract in good faith, have no rights?

In a judgment of 30 March 1978, the Court of Cassation gave a nuanced answer: the subletting is unenforceable against the landlord, but it produces all its effects between the head tenant and the subtenant, as long as the former has the enjoyment of the premises. In other words, the landlord may ignore the sublease, but the subtenant can turn against the head tenant to obtain compensation or maintain his occupation until the expiry of the head lease. Analysis of this landmark decision.

The Facts: A Story Like Many Others

In 1970, a landlord in Thann grants a commercial lease for premises for a term of 3, 6 or 9 years from 1 February. The head tenant, without informing his landlord, sublets part of the premises to a subtenant for a fixed term. The sublease contains a clause for automatic termination if the head lease ends. But the landlord, when he learns of this subletting, sues the head tenant for termination of the lease for lack of authorisation.

The dispute comes before the Colmar Court of Appeal, which rules in favour of the landlord: since the subletting is irregular, it is void and the subtenant must be evicted. But the subtenant appeals to the Court of Cassation. He argues that the landlord has no business interfering in his contractual relations with the head tenant, and that the sublease, even if unauthorised, remains valid between the parties.

The Court of Cassation quashes the appeal judgment. It recalls the principle: a subletting granted without the landlord's consent is unenforceable against the landlord. But that does not mean it is non-existent. In the relations between the head tenant and the subtenant, the contract continues to produce its effects as long as the head tenant retains the enjoyment of the premises. Thus, the subtenant may remain in the premises until the end of the head lease, and the head tenant must comply with his obligations (in particular, to provide compliant premises).

The Reasoning of the Court — Explained

To understand this decision, one must distinguish two legal levels: the relationship between the landlord and the head tenant, and the relationship between the head tenant and the subtenant.

At the first level, subletting without authorisation constitutes a breach of the lease contract. The landlord may seek termination of the head lease (Article 1728 of the Civil Code, which requires the tenant to use the leased property peacefully). But the landlord is not bound by the sublease: he may ignore its existence and not recognise the subtenant as a lawful occupant. That is what unenforceability means.

At the second level, between the head tenant and the subtenant, the sublease contract is valid. The Court of Cassation relies on Article 1134 of the Civil Code (now 1103), which provides that legally formed agreements stand as law to those who made them. The subtenant is entitled to respect for the contract: he can require the head tenant to allow him to occupy the premises for the agreed term, and in case of breach, he can claim damages.

The Court specifies that it is only when the head tenant loses the enjoyment of the premises (for example, if the head lease is terminated) that the sublease automatically ends. Until then, the subtenant is a lawful occupant vis-à-vis the head tenant.

This judgment confirms constant case law: it is neither an evolution nor a reversal. It recalls a subtle balance between protection of the landlord and security of the subtenant.

What This Means for You — Practically

Landlord: if you discover an unauthorised subletting, you can take action against the head tenant (termination of the lease, damages). But you cannot evict the subtenant without first obtaining termination of the head lease. Example: in Thann, a landlord had to wait 18 months of proceedings to recover his premises because the subtenant could remain until the judgment.

Head tenant: you are solely responsible. If you sublet without authorisation, you risk termination of your lease and payment of unpaid rents by the subtenant. But you may also be ordered to compensate the subtenant if you evict him before the end of the sublease.

Subtenant: you are protected as long as the head tenant occupies. If the landlord threatens eviction, you can invoke this judgment to stay until the end of the head lease. But beware: if the head lease is terminated, you will be evicted without any right to compensation from your side.

Purchaser of a leased property: you must check for sublettings. An irregular subletting can complicate repossession of the premises.

Four Tips to Avoid This Type of Dispute

• Landlord: include a clause prohibiting subletting in the lease. In case of breach, you will be able to terminate the lease more easily and claim damages.
• Tenant: always ask the landlord's written authorisation before subletting. Even if the lease does not expressly prohibit it, subletting requires authorisation (except for residential leases under certain conditions).
• Subtenant: demand from the head tenant a copy of the head lease and the landlord's authorisation. Check that subletting is permitted. If the head tenant does not provide these documents, be wary.
• Everyone: in case of dispute, consult a lawyer quickly. Proceedings can be lengthy, but prompt action can avoid additional costs.

Further Reading: Related Case Law and Developments

This 1978 decision is part of a consistent line. For example, a Court of Cassation judgment of 12 May 1982 (No. 80-14.567) confirmed that the subtenant cannot claim any right to renewal of the head lease. More recently, the Court of Cassation recalled in a judgment of 10 July 2013 (No. 12-20.898) that an irregular subletting does not confer any title of occupation enforceable against the landlord, even if the subtenant paid a premium.

The trend of the courts is therefore to protect the landlord against unauthorised sublettings, while avoiding that the subtenant suffers a brutal eviction. In practice, judges often favour a transactional solution: the subtenant leaves the premises in exchange for a period of time and/or compensation.

For the future, the question remains open: the development of short-term subletting platforms (like Airbnb) could lead to legislative or jurisprudential evolution.

Frequently Asked Questions

Can I sublet my flat without the landlord's consent?
No, unless your lease expressly permits it. Subletting is in principle prohibited without authorisation, on pain of termination of the lease.

What if I am a subtenant and the landlord asks me to leave?
Check whether the head tenant still has the enjoyment of the premises. If so, you can challenge the eviction by invoking this case law. But if the head lease is terminated, you must leave.

Can the landlord claim rent from the subtenant?
No, the subtenant owes rent only to the head tenant. The landlord has no contractual link with him.

What are the risks for the head tenant who sublets without authorisation?
He risks termination of his lease, payment of damages to the landlord, and possibly to the subtenant if the latter suffers harm.

Can I sublet part of my commercial premises?
Yes, but only if the lease permits it. In the absence of a clause, the landlord's authorisation is necessary. Partial subletting is often subject to strict conditions.

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