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What About Subletting?

Subletting seems like it’s a great option, especially when you only have a few months left on your lease but you need to move. However, it’s not that simple. Many leases have a clause against subletting and though there are NY State Laws in place to allow subletting, there are a lot of gotchas.

So here’s how to find out if you can sublet, if you can sublet instead of breaking your lease, and how to actually get it done:


Can I Sublet?

The short answer is… maybe. There isn’t really a short answer to this question. NY real estate law says “A tenant renting a resident pursuant to an existing lease in a dwelling having four or more residential units shall have the right to sublease his premises subject to written consent of the landlord in advance of the subletting.” And, “such consent shall not be unreasonable withheld.” This is true so long as the dwelling is not a condo or a co-op.

There are some exceptions to this right to sublet:

  • Public housing residents and people in subsidized housing (HUD, section 8) do not have the right to sublet.
  • Non-profit buildings: Tenants in limited-profit or non-profit housing may be prohibited form subletting, or these rights can be further restricted. You should check your program guidelines.
  • Co-ops: As previously mentioned, tenants in co-ops do not have the right to sublet by law. Their rights to sublet are governed by the buildings by-laws and the terms of their proprietary lease.
  • Tenants who rent subsidies: This includes Section 8, FEPS, or other rental subsidies.
  • Rent stabilized tenants DO have the right to sublet but rent controlled tenants do not unless their lease contains a clause that permits them to.

It’s important to note that despite what your lease says, you likely do have the right to sublet, so long as you don’t fall into the exceptions described above. The key is handling the process by the book.

It’s required to write your landlord requesting permission to sublet by certified mail. You must supply relevant and pertinent information about who the subletter is. Information like:

  • The term of the sublease (how long your subletter will be there) In NY, subletting must be for a term greater than 30 days. It is illegal to rent your apartment for less than this 30 day period.
  • The subletter’s name.
  • The subletter’s permanent home address and their business address.
  • Your reason for subletting.
  • Your temporary address for the duration of the sublet.
  • Written consent from your guarantor, if applicable.
  • A copy of the sublease you’ll have the subletter sign.

Your landlord is required to respond within 10 days. He or she may ask for additional information, but that request cannot be “unduly burdensome”. Within 30 days of your original letter, your landlord is required to reply, either consenting or withholding his consent. If he or she rejects the proposal, he or she must list the reasons why.

If your landlord does not respond, it is deemed consent and you can move forward with your subletter.


Rejected?

So what is reasonable and unreasonable rejection? Your landlord can reject your request to sublet for the following reasons:

  • If you fail to follow proper procedure in requesting permission (what was outlined above).
  • If you don’t demonstrate a valid reason for being away for your apartment. (Good reasons include going away for temporary job assignment, a school or educational obligation, caring for sick relatives, etc.)
  • If you do not show that you plan to return to the apartment.
  • Proposed tenant doesn’t have stable income.
  • Proposed tenant doesn’t have good credit history.
  • Proposed tenant has a criminal record.
  • Proposed tenant has a history of being sued for eviction by previous landlords.

The most important of these is intent to return. You can only legally sublet your apartment if you intend to return to it. This nullifies the opportunity to use subletting as a way to end your lease. You can get around this, by coming back for the last month, but that is where you may begin to stray from the law of the land and you may find yourself in some trouble.


Denied?

If your landlord unreasonably denies your request to sublet, you are legally allowed to move forward with the sublet but you must be prepared to defend your actions in court. Your landlord will be required to pay your legal expenses if he or she takes you to court and you win. You should definitely check with a lawyer if this arises.


Rent Stabilized Apartments

If you are rent stabilized, you have additional rules to follow and additional rights:

  • You cannot charge your subtenant more than your current rent unless the apartment is furnished during the sublet. If furnished, you can add a 10% surcharge.
  • You must maintain the apartment as your primary residence at all times, including the time of the sublet. In your letter requesting permission, you should state this and that you intend to return to the apartment at the end of the sublet. To prove primary residence status, you should pay New York City resident income tax and list the apartment as your residence on any driver’s license, insurance, car registrations, voting records, or other things that ask for residency information. If you fail to maintain the apartment as your primary residence, you open yourself to the threat eviction.
  • The law limits your sublet to two years, including the term of the proposed sublease, out of the four-year period preceding the termination date of the proposed sublease. Your landlord can grant you a longer term, but the law allows him to refuse if you ask. If your landlord agrees to let it go longer, get it in writing.
  • The term of the sublease can go beyond your current lease, and becomes subject to the terms of your renewal lease. For example, if you sublet for two years, but your own lease expires and is renewed in the middle, you can pass on any rent increases to the subtenant.
  • If you overcharge your subtenant, the subtenant can use the law protecting rent stabilized tenants against overcharges. The subtenant might win damages of three times the overcharge, attorney’s fees, and interest on the overcharge.
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