Restriction on Sublease
Concept of sublease
- A sublease of house is a contract that the lessee allows a third party to use the leased house and take profits therefrom based on his/her right of lease.
Restriction on sublease
- A sublease contract becomes valid and comes into existence by a contract between a sublessor (original lessee) and a sublessee (new lessee) regardless of the consent of the lessor. However, the lessee may not sublease the leased object without the consent of the lessor. If the lessee violates it, the lessor may rescind the lease contract (Article 629 of the Civil Act).
Sublease with Consent of Lessor
A juristic relation in sublease
- A relationship between a sublessor and a sublessee is determined by the details of a sublease contract. The sublessor has the rights and duties as a lessor against the sublessee.
- The lessor may exercise the rights following a lease contract against the lessee (Article 630 (2) of the Civil Act).
- The sublessee assumes the obligations directly to the lessor. However, the sublessee may not set a defense against the lessor by a payment of the rent to the sublessor (Article 630 (1) of the Civil Act).
· The rights of the sublessee shall not be extinguished even when the contract of lease is terminated not by the expiration of the term of the lease, etc. but by an agreement between the lessor and the lessee. Therefore, the existence of sublease may be asserted to the lessor and the lessee (Article 631 of the Civil Act).
Sublease of a leased house and opposing power
- Where the lessee subleases a leased house after obtaining the opposing power
· Where the lessee of a house with the opposing power lawfully subleases the house with the consent of the lessor, the original lessee's opposing power relating to the right of lease shall not be extinguished but continue to exist consistently even though the possession status and resident registration, which are means of publication of the right of lease, are changed by the sublease (Supreme Court's Decision dated June 10, 2010, Case No. 2009Da 101275).
- Where the lessee subleases a leased house without obtaining the opposing power
· Where the lessee subleases a leased house with the consent of the lessor without being provided with the leased house and completing resident registration, and the sublessee is provided with the house and completes resident registration, the lessee obtains the opposing power thenceforth (Supreme Court's Decision dated June 18, 1994, Case No. 94Da 3155).
Sublease without Consent of Lessor
A juristic relation in sublease
- The sublessee acquires a claim of using the house and taking profits therefrom from the sublessor, and the sublessor has a right to request rent from the sublessee.
- Although the relation of the lease between the lessor and the lessee continues to exist, the lessor may rescind the contract with the lessee by reason of sublease without permission (Article 629 (2) of the Civil Act).
- The validity of the sublease of a leased house without the consent of the lessor shall not be asserted to such lessor. Therefore, where the sublessee possesses the leased house, it shall be deemed an illegal possession against the lessor, and the lessor may demand the return of the leased house from the sublessee based on his/her ownership (Articles 213 and 214 of the Civil Act).
Sublease of a leased house and opposing power
- In principle, the sublease of a leased house by the lessee without the consent of the lessor shall not be effective. Therefore, the lessee or the sublessee may not oppose with the sublease of the leased house against the lessor as well as a third party.