Q: I am a tenant of a single-family house, and I’d like to sublet one of the bedrooms. My landlord is against it, pointing to a clause in our lease that says, "Tenant may not sublet the premises or assign the lease without Landlord’s permission." But I’m not subletting the whole house, only one room. Do I have the right to do this? –Dan N.
A: You may well have the right to sublet that bedroom, the result of your landlord’s simple and (as far as his interests are concerned) narrow lease clause.
Short and simple anti-subletting and assigning clauses like this are common. Perhaps landlords and their lawyers are thinking that the prohibition is wide because the rule appears all-encompassing. Fortunately for you, this is not necessarily the case.
A court may well side with you, finding that if the landlord meant to include partial subletting as something for which you’d need to get permission, he could have included this in the clause.
The rule behind this approach is a universal legal axiom which holds that the person who writes the document has the opportunity to make its terms — particularly those that benefit the drafter — clear and comprehensive. If the drafter fails to do so, he takes the consequences — the lack of clarity will be resolved in the other party’s favor.
The drafter can’t later say, "Well, I meant to include that, of course!" In your case, a judge might conclude that if the landlord wanted to include partial sublets, he could have written: "may not sublet all or part of the premises."
Partial sublets are just one example of the unintended consequences of an overly simple assignment and sublease clause. Some courts have held that once a landlord consents to an assignment, it waives its right to insist that the tenant obtain consent for future assignments. That problem can be averted by writing the clause to say that one instance of consent will not cancel the tenant’s duty to obtain consent for future assignments.
One more surprising outcome of a simple assignment and sublease clause, seen most often in commercial leases, concerns the consequences to the lease when the tenant merges with another entity, sells its assets to a third party, or transfers all of its stock to a third party.
In any of these transactions, the lease can go along with the transfer or sale, leaving the landlord with a new tenant, perhaps one that the landlord would not have chosen to rent to. The landlord will have no grounds to object unless his assignment and sublease clause includes a change of control provision, which describes events like these as an assignment for which the tenant needs consent.
You might go back to your landlord and ask why, exactly, he’s objecting to your plan. Is he concerned that someone will be living on his property whom he has not screened? This is a legitimate concern, for both of you, and it might be a good idea to see if you can come up with a screening process that will be acceptable.
Or is he unhappy with the thought that you, as a renter, will now become a landlord — and in the position to be making money off his property?
That’s a harder objection to meet, but it’s not insurmountable: Commercial landlords and tenants sometimes address it by figuring out how much profit the tenant is actually making, then splitting the profit equally between landlord and tenant. (But unless your lease has a clause mandating such a division, your landlord cannot now insist on it.)
Q: I own and manage a midsize apartment complex. I have a rule against smoking on the premises, and I also do not hire people who smoke, even when they’re off-site and not working. When I explained my policy to a job applicant, he objected, saying that because smoking is not illegal, I can’t use it as a reason not to hire him. He also says he’s addicted to nicotine and that I have to accommodate his problem. Is he right on either score? –Jimmy L.
A: Whether your policy would pass muster depends on the laws of the state where you live — you’ll need to consult an employment lawyer to get the precise answer. But here’s some general information that will help you ask your question.
Most states have some sort of "smokers’ rights" law, which may simply prohibit employers from making decisions based on whether an employee or applicant smokes cigarettes. Some laws protect only public sector workers; others limit the types of industries that may impose smoking-related bans or rules.
But some states take a different approach, prohibiting employers from making employment decisions based on "lawful activities" away from work. Your applicant has raised an argument that speaks to an approach like this.
Legal recreational activities, outside work premises and hours and without the use of the employer’s tools or property, may simply be off-limits to employers when they make employment decisions.
Let’s assume that, in your state, no statute prohibits an employer from using an employee’s off-site smoking as a reason to make negative employment decisions. This raises a practical issue for you: If you intend to check your employees’ adherence to your nonsmoking policy by having them take tests (specifically, a urine test to spot nicotine), your employee might challenge your policy as an infringement on his right to privacy.
Your applicant’s attempt to describe himself as "disabled" by virtue of his nicotine addiction is not a likely winner. Courts have consistently rejected that argument — prisoners, for example, who challenged restrictive prison rules regarding smoking have not been successful.
If you check with a local lawyer and learn that your approach exposes you to some risk of a lawsuit, however, you might want to rethink your position. Perhaps using a carrot, rather than a stick, would be the better approach: Instead of negative consequences for off-site smoking, you might consider rewarding those employees who do not smoke.
For example, there’s nothing wrong with offering financial rewards to those who quit, or for setting higher medical insurance copays for smokers. And if you find employees who clearly and obviously smell of smoke while at work, which interferes with the experience you want your tenants to have with management, that would justify a warning and, if necessary, a termination.
Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at email@example.com.
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