On The Validity Of Sub-lease Without Consent From The Landlord

Sublease without the consent from the original landlord is very common in the current leasing market. It is particularly commonplace to see"middleman"landlord or even a chain of"middlemen"landlords in house leasing market. With respect to this, the Contract Law only provides the right of the original landlord to terminate the lease contract. However, it does not cover issues such as the validity of sub-lease contract, the validity of sub-lease performance or the protection of sub-tenant's interests. This article proposes to present an analysis on the validity of sub-lease contract, the validity of sub-lease performance and the protection of sub-tenant's interests in the context of sub-lease without the consent from the original landlord. Besides the Foreword and Conclusion, this article comprises of four sections as follows:Section one: Definition of the basic concept of sub-lease performance. This section provides the conceptual analysis of sub-lease performance and suggests the characters of sub-lease performance by comparing it with the ordinary lease performance. Upon such basis, this section distinguishes sub-lease from related concepts such as the assignment of leasing rights or group lease, and then further defines the scope of sub-lease performance.Section two: Overview of current legislative and judiciary status in relation to the validity of sub-lease in China. This section first explains the validity of sub-lease where the consent from the original landlord is present. Then the section proceeds to analyze various categories of sub-lease by reference to the Contract Law, the regulations issued by related governmental departments or commissions, the provisions of the Maritime Law, and the rules issued by the Supreme People's Court. It also provides the comparison of these laws and regulations against such laws and/or regulations stipulated in other countries (territories).Section three: Discussion of the theoretical basis for sub-lease performance, which would then provide the theoretical evidences for this article's arguments. This section first analyzes whether sub-lease is an act of disposition or an act of liability, and further establishes whether sub-lease without due consent shall be treated as an act of unauthorized disposition. Then the section proceeds to analyze the root of leasing rights and suggests that the root of leasing rights is the legal occupancy but not the ownership, thus establishing the basis of whether the tenant has the right to sub-let.Section four: The validity of sub-lease without the consent from the original landlord. The section first analyzes the validity of sub-lease contract by reference to various views of the academia, reaching the conclusion that sub-lease contract without the consent from the original landlord shall be valid. Then, on the basis of the above, this section further analyzes the effect of such sub-lease on the original landlord and suggests that the lack of landlord's consent does not cause any real damage to the original landlord. From the perspective of promoting the circulating of and increasing the practical utilization of subject matters, the confirmation that sub-lease without consent from the original landlord is valid against the original landlord could lead to the Pareto Optimality in terms of utilization of subject matters. It follows with the analysis of exceptional scenario where such sub-lease shall not be held valid against the original landlord and, in such case, how the interests of the original landlord should be protected. This section then analyzes the validity of such sub-lease with regard to the tenant and suggests the two main obligations on the part of the tenant arising out of sub-leasing circumstances. Lastly, this section further analyzes the validity of sub-lease with regard to the sub-tenant and discusses the issues such as the preemptive rights of the sub-tenant, whether the principle"sale does not break lease"could be claimed by the sub-tenant, and how the sub-tenant's interests shall be protected when the lease contract between the original landlord and the original tenant has been changed.