Lease v Sublease

What is the difference between assignment of lease and sublease?

As a general rule, the lessee cannot assign the lease without consent of the lessor except if there is stipulation to the contrary. This is because the aassignment of this nature constitutes a novation by substituting the person of the debtor so the creditor-lessor must consent.

What is sublease?

Sublease is a separate and distinct contract of lease wherein the original lessee becomes a sublessor to a sublessee. It is allowed unless expressly prohibited and the sublessee is subsidiarily liable for any rent due. This is expressed in this article:

Art. 1651. Without prejudice to his obligation toward the sublessor, the sublessee is bound to the lessor for all acts which refer to the use and preservation of the thing leased in the manner stipulated between the lessor and the lessee. (1551)

What are the rights of Lessee to Sublease?

Unlike in assignment, a lessee may generally sublease the property in the absence of express prohibition. This is supported by the following articles:

Art. 1649. The lessee cannot assign the lease without the consent of the lessor, unless there is a stipulation to the contrary. (n)

Art. 1650. When in the contract of lease of things there is no express prohibition, the lessee may sublet the thing leased, in whole
or in part, without prejudice to his responsibility for the performance of the contract toward the lessor. (1550)

What are the rights of lessor if sublease is expressly prohibited but entered into by Lessee?

a. Rescission and damages;
b. Damages only (Contract will be allowed to remain in force)
c. Ejectment

What are the instances when sublessee is liable to the lessor?

This is when all acts which refer to the use and preservation of the thing leased in the manner stipulated between the lessor and the lessee. Also, the sublessee is subsidiarily liable to the lessor for any rent due from the lessee. The sublessee shall not be responsible beyond the amount of rent due from him. This is better explained in this article:

Art. 1652. The sublessee is subsidiarily liable to the lessor for any rent due from the lessee. However, the sublessee shall not be responsible beyond the amount of rent due from him, in accordance with the terms of the sublease, at the time of the extrajudicial demand by the lessor.
Payments of rent in advance by the sublessee shall be deemed not to have been.

References:

The New Civil Code

Jurado, D. (1999). Civil Law Reviewer. Quezon City: Rex Printing Company, Inc.

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