The procedure for subletting your apartment can get very complicated, and there are many ways that your landlord can make it difficult. Here’s a guide to tenants’ rights and responsibilities under the law.Before you start the sublet process, make sure that you don’t really want to assign or share. Many tenants who intend to do one wrongly believe that they mean to do another. Sublet means that you are temporarily leaving the apartment and subletting it to someone else while you’re gone. Sharing means that you are taking into the apartment one or more unrelated persons who will be your roommates without establishing an extended family relationship. Assignment means that you are permanently leaving the apartment and assigning the lease and the apartment to someone else.
Even if your lease forbids it, you have the right under the law to sublease your apartment, and the lease provision is null and void. The subletting procedures below apply generally to tenants renting an apartment pursuant to an existing lease in a building having four or more residential units. The exceptions are tenants in public housing, limited-profit housing, or housing subject to rent control. Rent controlled tenants may, however, sublet if they have a current or prior lease that contains a clause permitting subletting, or if the landlord consents. To sublet, you must closely follow these procedures:1. Send a letter to the landlord by certified mail, return receipt requested, requesting permission to sublease. (You should retain copies of this correspondence, as well as all other correspondence sent to the landlord.) This letter must contain the following information:
The term (starting and ending dates) of the sublet, not to exceed two years. (If you are uncertain about the term, choose the longer period, because it is difficult to extend the sublet. You can always return early.)
The name of the proposed subtenant. (Choose someone you know if possible. Subleasing to strangers is risky and often full of unhappy surprises.)
The business and permanent home address of the proposed subtenant.
Your reason for subletting (work transfer, school attendance, family crisis, etc). Your reason must reflect an intent to return.
Your address for the term of the sublet.
The written consent of any co-tenant or guarantor of your lease.
A copy of the proposed sublease, to which a copy of your lease is attached, if available.
A separate letter wherein both you and your proposed subtenant state that the attached sublease is a true copy of such sublease. This statement must be signed and notarized.
2. Within 10 days after you mail your initial request, your landlord is allowed to ask for additional information, in order to determine if rejecting your request would be unreasonable. Expect a list of inquiries about the proposed sublessee’s resources and rental history.
3. Within 30 days after you mail the initial notice, or after you mail the additional information if requested, your landlord must send you a notice of consent to the sublet, or their reasons for refusal.
If your landlord consents, you may sublease, but you remain liable for future rents.
If your landlord reasonably withholds consent, you can’t sublet, and you are not released from the lease and can be held liable for future rents.
If your landlord fails to send a response within the 30 days, this shall be deemed consent to the subletting.
If your landlord unreasonably withholds consent, you may sublet in accordance with the request. If your landlord then tries to evict you, you may recover the costs of any eviction proceedings, together with attorneys’ fees, if it is found that your landlord acted in bad faith by withholding consent.
4. If your apartment is rent stabilized, the following provisions also apply:
You cannot charge your subtenant more than your current rent unless the apartment is furnished during the sublet. In this case, a 10 percent surcharge may be added. The landlord may also collect a vacancy-allowance increase during the term of the sublet. It is rolled back when the prime tenant returns. The increase is the vacancy allowance, if any, provided in the Rent Guidelines Board Order in effect at the beginning of the lease, provided the lease is a renewal lease.
You must establish, and should say so in your initial letter to your landlord, that at all times you will maintain the apartment as your primary residence and intend to reoccupy it at the expiration of the sublease. Primary-residence status requires that during your absence from your apartment, you pay New York City resident income tax, listing the apartment as your residence, and that all records of your residence, including your driver’s license, car registration and voting records, reflect the apartment as your home.
You, as the prime tenant, retain the right to a renewal lease, and the rights and status of a “tenant in occupancy” as they relate to conversion to condominium or cooperative ownership.
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 may agree to waive this limitation, but the law allows him to refuse. There is no harm in asking. If he says yes, get it in writing.
If your lease expires during the term of the proposed sublease, your subtenant is subject to your renewal lease. The landlord is required to offer and accept a renewal lease from you during the sublet period just as if you were in occupancy.
Should you overcharge your subtenant, he or she shall be entitled to damages of three times the overcharge and may also be awarded attorneys’ fees and interest from the date of the overcharge.
If your landlord rejects a proposed sublease, it is strongly recommended that you consult an attorney or contact your local Met Council branch for advice.
Sharing Your Apartment with Roommates
All tenants in New York state have rights under the roommate law, which was enacted in 1983 along with the subletting provisions. Prior to this law, sharing an apartment was limited to those named on the lease and immediate family. 1. If only one tenant has signed the lease (or where there is only one rent controlled tenant of record), that tenant is entitled to one roommate who is not a member of the tenant’s immediate family.
2. If two or more tenants have signed the lease (or where there are two or more rent controlled tenants of record) and they all live there, they are not entitled to have any roommates. If one or more of the tenants named on the lease (or one or more of the rent controlled tenants of record) moves out, the departing tenant or tenants can be replaced by the same number of roommates.
3. The named tenants on the lease (or the rent controlled tenants) can always have their immediate family members living with them.
4. A named tenant, a rent controlled tenant, or a roommate is always entitled to have his or her dependent children living with him or her. They do not count in the enumeration of the right to one or more roommates.
5. You must inform the landlord of the name of a new roommate within 30 days after the roommate moves in, or within 30 days after a request by your landlord for the roommate’s name. Failure to notify the landlord carries no penalty.
6. Neither your roommate nor your roommate’s dependent children acquire any right to remain in the apartment if the named tenant(s) vacate the apartment. Neither your roommate nor your roommate’s dependent children acquire any right to purchase the apartment under a cooperative or condominium conversion plan (unless your landlord gives specific permission in writing).
7. Your landlord cannot make you waive your rights under the roommate law, and is not allowed to increase a stabilized tenant’s rent because you have a roommate. Sometimes, rent controlled tenants must pay a rent increase for “increased occupancy” when the total number of people living in the unit increases.
8. The rights created under the roommate law do not apply if having roommates violates some other federal, state, or local law. For example, your landlord could in certain situations use regulations prohibiting overcrowding to prohibit sharing arrangements.
9. Certain occupants, including roommates, can have succession rights — the right to take over the apartment when the prime tenant (the tenant named on the lease) moves or dies. Contact Met Council if you would like a copy of our succession rights information sheet.
Assignment of Leases
If you intend to leave your apartment permanently, you have the right to write to the landlord to propose another specific person to assume the remainder of the current lease and inherit the apartment. This is called an assignment. The process gives tenants who wish to break a current lease an opportunity to transfer their responsibilities under it to another person. The departing tenant relinquishes all rights to the apartment. Your landlord has the absolute right to deny your request to assign, and you have no right to appeal that decision. You then may not assign. However, in certain circumstances, you do acquire the right to cancel the remainder of the lease. In response to your assignment request, your landlord may either (1) not respond, (2) deny your request without giving a reason, (3) deny your request unreasonably (“I only rent to professionals”), or (4) deny your request reasonably (“Your proposed assignee only earns half of what you do and cannot afford the rent”). If your landlord responds as in (1), (2), or (3), you have the right to cancel the lease within 30 days from the date you gave them your assignment request. If your landlord under (4) denies the assignment “reasonably,” you cannot cancel the lease. There is obviously plenty of room for interpretation of what is “reasonable.”
Your written request should both give the landlord notice of your intent to move and propose assignment to a specific person with detailed information about the proposed assignee. Many landlords are happy to release tenants from their leases, because it gives them the opportunity to get a rent increase sooner. If your landlord tells you that you can break your lease, get it in writing.
Tenant attorneys Michael Finder, Thomas Kerrigan, and Andrea Novick contributed their expertise to this information sheet.