No matter the legal analysis or the specific investigation of foreign legislation and trial practice on leasing, it will be concluded that the right to lease houses comes from legal possession.
For example, if the mortgaged house is rented, does it mean that the rental behavior is invalid because the property right is not fully obtained? Another example is the phenomenon of a large number of "second landlords". Is the lease contract signed by the "second landlord" with others invalid? Obviously, these rental behaviors are considered invalid, which is extremely unfavorable to economic development and will also lead to the idleness and waste of housing resources. This violates the purpose of socialist legislation and the principle that law should adapt to the law of development of things.
From the perspective of real right, it is very common for the owner to transfer possession, and it should be appropriate for the legal possessor to enjoy the right to income within the scope allowed by the owner, otherwise what is the economic value of simple "possession"? This is the case when the legitimate owner rents a house. Another form of real right, that is, the owner of other real rights is actually the actual possessor of things, and enjoys many rights of the owner, such as renting. For example, the contractual management right of state-owned enterprises, can it be said that state-owned enterprises can not rent their own property because they have no ownership? Obviously, this is negative. A large number of enterprises rent shops and factories in various places. If they are all considered illegal, then legislators are denying themselves.
In addition, from the contractual point of view, the lease contract embodies the contractual relationship that the lessor delivers the lease item to the lessee for use, gains and the lessee pays the rent (Article 222 of the Contract Law). As a party to the contract, the lessor is not restricted by the owner, because the lease relationship reflects the transfer of possession: one party transfers its possession to obtain the rental income, and the other party obtains the possession by paying the rental income. As far as the legal relationship of lease is concerned, there is no direct and inevitable connection between the parties and the ownership of the subject matter. There is no difference between the lessor who owns the house and the lessor who legally obtains the right of possession by other means, but the way they obtain the right of possession is different.
The legislation of no country directly describes the lessor as the owner as the current legislation in China. Theoretically speaking, legal possession is the right to lease the subject matter. As for subletting, the consent of the original lessor is only a special requirement of the lease contract, and the original lessor cannot be regarded as the owner. To sum up, ownership should not be used as the source of housing lease, but legal possession should be used as the source of rights.