NYC Sublet Law allows qualified tenants to sublease their apartment subject to certain conditions, even if a contrary provision is provided in the lease contract. NYC Sublet Law considers provisions in the lease contract prohibiting subleases as illegal and unenforceable. As much as landlords don’t like subleases, they face difficulties avoiding them.
General Conditions to Sublet an Apartment
To sublet an apartment, the primary tenant must strictly follow the procedure provided by the NYC Sublet Law:
- The primary tenant shall request the landlord for a sublease at least 30 days prior to the proposed subletting through certified mail, return receipt requested, which should include the following information: the term of the sublease, the name of the proposed sublessee, the business and permanent home address of the proposed sublessee, the reason for the sublet request, the primary tenant’s address for the term of the sublease, written consent of any co-tenant or guarantor on the lease, and a copy of the proposed sublease acknowledged by the prime tenant and the subtenant as a true copy of the sublease agreement;
- The landlord has 10 days after the mailing of the request to ask the tenant for additional information;
- The landlord has 30 days from the primary tenant’s request for a sublease or from the landlord’s request for additional information, whichever is later, to reply to the primary tenant, either consenting to or denying the sublease with reasons for denial. If the landlord fails to reply to the primary tenant’s request for a sublease, such failure to reply shall be deemed consent.
A sublease should not be less than 30 days.
Who Are Qualified Tenants
Under the NYC Sublet Law, the following tenants are qualified to sublet their apartments: (a) tenants who live in a building with four or more rental units; and (b) tenants in rent-stabilized apartments. The following tenants, on the other hand, do not have a right to sublet their apartments: (a) tenants who live in non-profit buildings; (b) tenants in co-ops and condo apartments; (c) tenants in rent-controlled apartments; (d) tenants in public or subsidized housing; and (e) tenants with rent subsidies where rent is based on income.
Additional Conditions to Sublet for Rent-Stabilized Apartments
Rent-stabilized apartments applies to apartments in buildings of six or more units constructed between 1947 to 1974. Rent-controlled apartments apply to tenants and their successors who have lived continuously in their apartments since July 1, 1971. There are more rent-stabilized apartments than rent-controlled apartments in NYC. Rent-controlled apartments do not have a right to sublet, unless it is provided for in the lease contract. Rent-stabilized apartments, on the other hand, have a right to sublet under NYC sublet law, subject to additional conditions.
The primary tenant may not sublet the apartment for more than 2 years within a 4-year period. The primary tenant cannot overcharge the subtenant, and can only increase the rent by 10% if the apartment was rented from the landlord unfurnished and thereafter rented to the subtenant furnished. To qualify for the 10% rent increase, the primary tenant needs to fill out forms to be submitted to the NY Division of Housing and Community Renewal (DHCR). The primary tenant shall be liable to refund the subtenant any overcharge above that allowed by law, multiplied three times, as penalty.
The primary tenant must also maintain the rent-stabilized apartment as their primary residence at all times, including the time of the sublet, to show their intention to return to the apartment at the end of the sublease. To prove primary residence status, the primary tenant must pay New York City resident income tax, list the apartment as the primary residence, and make sure all government records show the rent-stabilized apartment as his indicated address (i.e., car registration, driver’s license, voting records, etc.). Otherwise, the sublease will be considered illusory and the landowner can evict the primary tenant and subtenant.
Denial of Sublease
Under the NYC Sublet Law, if the landlord unreasonably denies consent to the sublease, the primary tenant may continue the sublease. In an action over owners withholding consent to subletting, the primary tenant may recover attorneys’ fees if shown that the landowner acted in bad faith in withholding consent.
If the landlord’s reason for denial is with valid reason, there can be no recovery of attorneys’ fees. Valid reasons for denial are normally economic in nature with regard to the subtenant or refer to issues of primary residence of the primary tenant.
Examples of valid reasons for denial are: subtenant does not have stable income or employment, subtenant has history of eviction, subtenant has a criminal record, subtenant has poor or insufficient credit history, primary tenant has no valid reason for being away, primary tenant did not follow proper procedure in requesting permission, or primary tenant has no intention of returning back to the apartment.
Sublease vs. Assignment
A tenant sublets his apartment when he (the primary tenant) leaves his apartment for a temporary period and leases the apartment to another person (the subtenant). In this situation, the primary tenant has to and must have intention to return back to the apartment after the sublease. The primary tenant is still liable to the landlord for rent, whether or not the subtenant pays. The landlord generally cannot unreasonably withhold his consent to a sublease. An example is when a NYC tenant takes a vacation for two months and subleases the apartment during that vacation period to another person.
In an assignment, the tenant is permanently leaving the apartment and has no intention of returning. For this reason, the tenant is assigning all his rights over the apartment to another person. The assignment releases the tenant from any obligations in the primary lease contract. The landlord can refuse to consent to an assignment without providing any reason. Unlike in a sublease, a tenant has no right to assign his lease contract.
When a tenant rents out a room of his apartment but continues to live in the apartment, the situation is not covered by the NYC Sublet Law. In this case, the tenant does not need to obtain the consent of the landlord in renting out the room in the apartment because the tenant exercises supervision over the roommate and continues to be liable to the landlord for the full amount of the rent.