A lease by the original lessee to a third party renting part or the whole of the leased property but for a period of time less than the term of the original lease.
As Bryne wrote in his 1923 Dictionary of The English Law:
"Where a person who is himself a lessee grants a lease of the same property to another person for a shorter term, it is properly called (a) sublease...."
For a valid sublease to exists, the original tenant has to retain some rights to the property.
In Anthem, the Court used these words:
"On the grant of a sublease, a tenant (sub-landlord) must retain a reversion, that is, an interest in the lease, otherwise an agreement called a sublease is, at law, an assignment."
The sublessee has no rights or liabilities under the original lease as there is no privity of contract between the subtenant and the primary landlord.
With apologies to proponents of plain language law (don't shot the messenger!), the third party to the original lease, the tenant under the sublease, is called a sublessee or subtenant. The lessee who leases all or all of the leased property becomes, as regards the sublease, the sublessor, sublandlord or underlessor.
A sublease is also known as an underlease.
As a rule of thumb in law, but subject to the law of any particular jurisdiction, and the contract between a tenant and a landlord, in residential tenancies, tenants have great freedom to sublease.
In Williams & Rhodes, relying on Leith Properties, the authors write:
"... at common law, if a lease is silent on the matter the tenant may grant a sublease without the landlord's consent."
But the contrary is true, generally, in commercial leases where the prior consent of the landlord to a proposed sublease is generally required.
REFERENCES:
- Anthem Heritage Hill Ltd. v. Just One Stop Ltd. 2006 ABQB 113
- Bentley, C., and Butkus, M., Williams & Rhodes Canadian Law of Landlord and Tenant, 6th Edition (Toronto: Carswell, 2009).
- Duhaime, Lloyd, Legal Definition of Lease
- Duhaime, Lloyd, Residential Tenancy: A Glossary
- Leith Properties v Bryne 1982 3 All England Reports 731 or 1983 QB 433
- Olson, R., A Commercial Tenancy Handbook, looseleaf (Toronto: Carswell, 2005)
- Zurich Canadian Holdings Ltd. v Questar Explorations 126 Manitoba Reports 2d 309 (1999)