Subletting and Make Good: How Liability Flows

If your subtenant damages the premises or skips make good, your head landlord's claim runs to you, not them. Here is how the sublease chain actually works.

Subletting adds a second contract on top of your head lease, but it does not add a second party your head landlord can chase. You remain the tenant under your original lease and continue to owe your landlord its obligations, while also becoming a kind of landlord yourself to your subtenant under the sublease. If your subtenant damages the premises, skips their own make good, or simply disappears at the end of their sublease, that structure decides who your head landlord actually comes after, and it is not them.

Your head landlord's claim runs through you

With a sublease you stay in the middle of the arrangement: you still pay rent to your landlord and collect rent from your subtenant. That middle position is also where liability sits. P&B Law's advice to subletting tenants makes the point plainly for rent: if the subtenant defaults on rent or damages the property, you remain liable to your head landlord to pay the whole of the rent. The same logic applies to make good. The obligation sits with you under your head lease, not with whoever happens to be occupying the space when the lease ends.

Make sure your sublease's make good clause actually matches your head lease's

Align your sublease's end of lease make good with your head lease, and decide who pays for reinstatement (full, partial, or none). Make sure the sublease itself carries its own make good clause for the subtenant, because once they are in occupation you do not have direct control over the space they occupy. A sublease that only tells your subtenant to make good in general terms, without pointing at the exact clause your head lease already sets, is the gap that turns into an argument later.

• Copy the reinstatement standard your head lease actually uses (original condition, base building, or whatever it specifies), rather than a looser paraphrase.
• Set your subtenant's make good deadline before your own, so you have time to inspect and fix anything before your own handback to the landlord.
• Put the reinstatement cost split in writing, full, partial or none, rather than assuming it follows the head lease automatically.

Make good clause explained · Who pays for make good

Time your sublease to end before your head lease, not on the same day

A sublease that runs right up to your head lease's own expiry date leaves you no room to inspect, chase or fix anything your subtenant leaves behind before you have to hand the space back yourself. The rule of thumb from P&B Law's subletting advice is to set the expiry of your sublease one day before that of your head lease, so any shortfall in your subtenant's make good is still your problem to catch, not your landlord's problem to notice.

Plan your own handback timeline

What a tripartite consent deed changes

Almost every commercial lease requires your head landlord's consent before you sublet. P&B Law's subletting advice puts it plainly: it is necessary to obtain the consent of your head landlord before subletting property. Your own head lease is what decides whether consent is needed and on what conditions, so read that clause first. That consent is often documented in a deed signed by landlord, tenant and subtenant together, often called a tripartite consent deed. Where that deed has your subtenant covenant directly with your landlord, your landlord gains a claim against your subtenant as well. It does not release you: your head lease obligations continue either way. Read the actual consent deed your landlord asks you to sign, not just the sublease, so you know exactly what it adds.

Negotiating a make good clause

Frequently asked questions

Sources: P&B Law, 4 tips for subletting commercial property: what you need to know , Sprintlaw, How to Sublease Your Business Premises