What is the Right of Possession in Subletting?

Understanding the right of possession in subletting is crucial for both the original tenant and the subtenant.

In Sweden, tenants generally have a strong right of possession, meaning they have the right to remain in the apartment even after the lease expires. However, when it comes to subletting, where a tenant rents out their apartment to another person, there are specific rules and exceptions that are important to be aware of. This article explains what the right of possession in subletting entails and which situations can affect this protection.

What is the Right of Possession?

The right of possession is a statutory right for tenants to remain in their dwelling, even if the landlord terminates the lease. This protection is intended to provide security and stability for the tenant. It means that the landlord cannot arbitrarily terminate a lease without valid reasons, and even then, the tenant may be entitled to compensation or renegotiation.

What does the right of possession mean in subletting?

When a tenant (original tenant) sublets their dwelling to another person (subtenant), a new tenancy is created between these two parties. The general rule is that the subtenant also has a right of possession against the original tenant. This means the original tenant cannot simply ask the subtenant to move out without valid reasons and must follow the applicable termination rules.

How long does the right of possession last for a subtenant?

The right of possession for a subtenant normally lasts for the entire duration of the sublease agreement. If the agreement is for an indefinite period, the subtenant has the right to terminate the agreement with three months' notice. If the original tenant wishes to terminate the agreement, valid grounds are usually required, and the subtenant must have breached the contract or other compelling reasons must exist.

Can the right of possession be waived in subletting?

Yes, it is possible to waive the right of possession in subletting, but it requires approval from the Rent Tribunal (Hyresnämnden). Such an agreement must be in writing and made before the subletting begins. Without the Rent Tribunal's approval, a contractual waiver of the right of possession is invalid. This is particularly common for short-term rentals or when the original tenant needs the apartment for their own use within a specific timeframe.

What are the common exceptions to the right of possession?

There are several situations where the right of possession in subletting does not fully apply, or where termination can be simpler. A common exception is when the original tenant needs to retake the apartment for their own use, often if they have been away for a limited time. Another exception might be if the subletting occurs in connection with a housing cooperative or other types of housing where rules differ. Even if an agreement has been approved by the Rent Tribunal to remove the right of possession, there are still limitations on how quickly a sublet can be terminated.

What happens if I sublet without permission?

If you sublet your dwelling without permission from your landlord or housing cooperative, your own lease may be terminated. In such a case, the subtenant has no right of possession at all. It is therefore very important to always apply for permission before subletting.

Can a subtenant get a primary lease?

No, a subtenant cannot automatically obtain a primary lease. The right of possession allows them to stay during the contract period and sometimes after, but it does not give them priority for a new primary lease. If the original tenant terminates their lease, the sublease agreement also terminates.

What is the difference between subletting and having a lodger?

In subletting, the original tenant rents out the entire or a larger part of the apartment to a new tenant, and the original tenant usually moves out. When having a lodger, the original tenant remains in the apartment and rents out a room. The rules regarding the right of possession differ; a lodger generally has weaker protection than a subtenant.

How do I terminate a sublease agreement?

To terminate a sublease agreement, the same rules as for regular leases apply, unless otherwise agreed upon and approved by the Rent Tribunal. The notice period is normally three months. The original tenant must have valid reasons for termination, and if the subtenant does not agree to the termination, it may require a review by the Rent Tribunal. It is important that the termination is done in writing.

What should I do if I, as a subtenant, receive a termination notice?

If you, as a subtenant, receive a termination notice and believe it is unfounded, you can contest it. You can then turn to the Rent Tribunal to have the matter reviewed. The Rent Tribunal will assess whether there are valid grounds for termination according to law and agreement. Remember that specific exceptions to the right of possession can affect the outcome.

Can I sublet my housing cooperative apartment?

Yes, it is possible to sublet a housing cooperative apartment, but it requires permission from the housing cooperative's board. The rules for subletting cooperative apartments may differ from rental apartments, and it is important to follow the cooperative's statutes. Here too, there may be limitations on the right of possession depending on the circumstances.

In summary, the right of possession in subletting is a complex issue with many rules and exceptions. Understanding these rules is essential to avoid conflicts and ensure that all parties act lawfully. If you are unsure about your situation, seek legal advice.