Is it legal for landlord to prohibit subleasing, under Texas law?

Question

It's quite common that plans change, and a residential lease must be broken.

Of course, since one has agreed to pay the full price of the lease, they're on the hook for it, unless they can find someone else to help them mitigate the damages.

However, the sublessee might only be interested in taking over a certain part of the lease (e.g., say, month 5, 6, 7 and 8 of a 12-month lease), and would not be interested in taking over the whole lease, thus having to find another lessee for months 9 to 12.

Does the landlord have the right to refuse to mitigate tenant's damages to accommodate such an arrangement? In my experience, the corporate landlords always simply say "we don't do subleasing, you can only take over the whole lease [and then deal with re-leasing]". But doesn't this violate the provision about damage mitigation?

http://www.statutes.legis.state.tx.us/Docs/PR/htm/PR.91.htm

Sec. 91.006. LANDLORD'S DUTY TO MITIGATE DAMAGES. (a) A landlord has a duty to mitigate damages if a tenant abandons the leased premises in violation of the lease.

(b) A provision of a lease that purports to waive a right or to exempt a landlord from a liability or duty under this section is void.

I was reading on UniformLaws.org that in certain situations and/or states, landlord's failure to mitigate damages is automatically grounds for contract termination (thus no rent or damages are further due), does it at all apply here?

IV. What Are the Consequences of Landlord’s Failure to Mitigate?

Jurisdictions have taken one of two approaches in handling the landlord’s failure to comply with the duty to mitigate. The current version of the URLTA provides that if the landlord fails to use reasonable efforts to mitigate, “the rental agreement is deemed to be terminated by the landlord as of the date the landlord has notice of the abandonment.” In effect, this provision precludes the landlord from recovering any damages past the date of the abandonment. About half of the jurisdictions that have URLTA-based statutes (AK, AZ, CT, IA, KS, KY, MT, OK, OR, RI, SC) have retained this provision in their statutes, while the other half (AL, FL, HI, MI, MS, NE, MN, TN, VA, WA) have omitted it. Nevada has a similar provision in its non-URLTA statute.

If you're the original tenant, what recourse can you take?

If you're a prospective sublessee, is the landlord at all obligated to put you in contact with the original tenant for you to potentially inform the original tenant of their rights, and, potentially, see if they're interested for a sublease instead? Anything else that can be done if you're already in contact with the original tenant?

Answer 1

Landlord-tenant law is an area that is heavily statute-based, jurisdiction-dependent, and far from uniform across the country. A complex, specific, multi-part question like this one is not going to get a simple answer.

In general, though, I can clear up some of the confusion with a quick example.

Let's say you abandon your lease, but as you do so, you write a letter to the landlord saying: "While I won't be living there any more, my friend's band needs a place to practice. They have agreed to pay half my rent if you let them play there 4 nights a week. They'll be starting on Tuesday at 11 PM: please have a set of keys waiting for them at the front desk."

The landlord does not give your friends the keys. They re-key and clean the apartment and rent it two months later.

Are you going to stand up in court and argue, with a straight face, that you should only be liable for half the rent for those two months because of the landlord's "failure to mitigate"?

Again, jurisdictions differ, but the duty to mitigate is not absolute. If the landlord could rent out a $1,000/month apartment for $5 a month, it doesn't have to do that, and you can't make the Court take $5 a month off their damages if they refuse to do so.

Also, you seem to be confused about what subleasing is. A sublessor owes duties to you; you still owe the duty to your landlord to get the rent paid. A sublease is an agreement between you and a third party to pay you rent. It does not affect your relationship with the landlord at all, unless it's a breach of your agreement with the landlord or of local law protecting the landlord from unauthorized subleasing.