Renting Out in Second Hand: What Does the Law Say About Subletting?

Renting out a property in second hand can be an attractive solution for both tenants and property owners, but it is crucial to understand the laws and regulations governing the process. Many dream of financing their own housing by subletting part of it, or earning some extra money when they are away. But what does Swedish law actually say about renting out in second hand?

This article provides a comprehensive overview of the legal aspects of second-hand subletting, including necessary permissions, tenant rights, and landlord responsibilities. Navigating these rules is essential to avoid problems and ensure a secure rental arrangement.

Permission from the Landlord: The Basis for Legal Subletting

The absolute most important step before even considering renting out your property in second hand is to obtain formal permission from your landlord. Subletting without permission can lead to serious consequences, including forfeiture of your tenancy. The Tenancy Act (Jordabalken Chapter 12, Section 35) clearly states that the tenant needs the landlord's consent to sublet the apartment.

When Can You Expect Permission?

The landlord cannot deny permission unless there is a reasonable cause. Reasonable causes might include if the prospective tenant is deemed unreliable, if the rent charged is unreasonably high, or if the apartment risks being overcrowded. Common reasons for tenants to apply for second-hand subletting include:

• Work or studies in another location: If the tenant temporarily needs to move due to job or studies.
• Illness or old age: If the tenant needs to move to a care facility or to a relative.
• Trial cohabitation: If the tenant wants to test living together with a partner before making a permanent decision.
• Extended stay abroad: If the tenant will be away for an extended period.

In these cases, it is usually the landlord's duty to grant consent, provided the prospective tenant is responsible and the terms are reasonable. However, the landlord always has the final decision.

The Application Process

The application for permission should be made in writing and include information about who will rent the apartment, for what period, and at what rent. It is also good to attach a brief description of the reason for the subletting. Start the process well in advance, as processing times can vary.

Second-Hand Rental Agreements: Important Clauses

Once permission is granted, the next step is to establish a proper second-hand rental agreement. This agreement governs the relationship between you as the primary tenant (subletter) and your subtenant. A clear and legally sound second-hand rental agreement is crucial to avoid misunderstandings and future disputes.

What Should the Agreement Include?

A standardized agreement for second-hand subletting is recommended. It should at least include:

• Names and personal/organization numbers of the parties.
• Information about the apartment: Address, size, number of rooms.
• Rental period: Start and end dates. Note that second-hand subletting is usually time-limited.
• Rent: Amount, payment date, and how the rent should be paid. Be careful not to charge a higher rent than you yourself pay, plus any costs for utilities and maintenance that you cover. Charging an unreasonably high rent can be a violation of the Tenancy Act.
• Usage rules: For example, whether smoking or pets are allowed.
• Notice period: Even if the agreement is time-limited, there may be reasons to regulate termination during the period.
• Inventory list: If the apartment is furnished.

Differences from a Standard Rental Agreement

It is important to understand that the subtenant does not have the same strong right of possession as a primary tenant. If the primary tenant (you) terminates their own agreement with the landlord, the second-hand agreement also terminates at the same time, provided the notice period is respected.

Tenant's and Landlord's Rights and Obligations

When you choose to rent out in second hand, you take on the role of both a tenant (to your landlord) and a landlord (to your subtenant). This entails a dual responsibility.

Subletter's Responsibilities

As a subletter, you are ultimately responsible for:

• Paying your rent to your own landlord on time.
• Ensuring the subtenant behaves properly: This includes paying rent, not disturbing neighbors, and not mistreating the apartment.
• Complying with all terms of your own rental agreement.
• Informing the subtenant about important rules applicable to the property.

If the subtenant misbehaves, it could lead to you losing your own primary tenancy. Therefore, it is important to thoroughly vet the person who will be renting.

Subtenant's Rights

Although the right of possession is weaker, the subtenant still has rights:

• Right to an approved subletting: The subletting must be approved by both the primary tenant and the landlord.
• Right to a reasonable rent: The rent must not be unreasonably high.
• Right to an apartment in good condition: The apartment must be fully usable and in good condition upon move-in.
• Right to some predictability: Although the right of possession is limited, the subtenant may have a right to a certain notice period and the possibility to stay for a while after the primary agreement ends, depending on the circumstances and the agreement's terms.

Common Pitfalls When Renting Out in Second Hand

Renting out in second hand may seem simple, but there are several common mistakes that both subletters and tenants make.

Unauthorized Subletting

The most common mistake is subletting without permission. As mentioned, this can lead to the primary tenant being evicted. Even if you believe your landlord is informal, it is always best to have written approval.

Unreasonable Rent

Trying to make large profits from second-hand subletting by setting an unreasonably high rent is not permitted. The rent should not exceed your own rent plus a reasonable compensation for furniture and utility costs. For violations, you may be required to repay the difference and, in the worst case, lose your right to sublet.

Lack of Maintenance

As a subletter, you are responsible for the maintenance of the apartment. You cannot blame your subtenant if the apartment is damaged or deteriorates. Ensure that the person renting from you takes good care of the property.

Unclear Agreements

An unclear or incomplete rental agreement can lead to disputes. Always use a written agreement that clearly specifies all terms.

FAQ: Common Questions About Renting Out in Second Hand

Can I charge more rent than I pay myself?

No, generally you cannot charge a higher rent than your own rent plus reasonable compensation for furniture and any utility costs you cover. Charging unreasonably high rent can lead to you being required to repay the difference and can also be grounds for the landlord to terminate your own agreement.

How long can I rent out in second hand?

Second-hand subletting is usually time-limited. The law states that permission is normally granted for a maximum of two years. If you need to sublet for longer, a new permit from the landlord and possibly the Rent Tribunal may be required.

What happens if my subtenant doesn't pay the rent?

If your subtenant does not pay rent to you, you are still obligated to pay your own rent to your landlord. You may need to take steps to evict the subtenant, but you cannot escape your own payment responsibility.

Can I rent out my furnished room in second hand?

Yes, you can rent out a furnished room in second hand, but you still need the landlord's permission. The terms for rent and the agreement generally follow the same principles as for an entire apartment.

What is the right of possession in second-hand subletting?

The subtenant has a limited right of possession. This means that if your own rental agreement ends, the second-hand agreement usually ends at the same time. However, there are exceptions and rules that may allow the tenant to stay for a certain period, especially if the subletting has been ongoing for a longer time and met certain criteria.