Subletting your Apartment

Do I have the right to sublet my apartment?

In New York City, tenants in privately-owned buildings of four or more units have the right to sublet by law, even if the lease forbids it (as such lease provision restricting the right are null and void as a matter of public policy) with the following exceptions:

• Public housing residents, and tenants in subsidized housing (HUD, project-based Section 8, etc) do not have the right to sublet.
• Non-profit buildings: Tenants in limited-profit or non-profit housing may be prohibited from subletting, or these rights may be further restricted (check your program guidelines).
•  Co-ops: Tenants in coop (and condo) apartments do not have a right to sublet by law. The rights of such tenants to sublet are governed by the building’s by-laws and the terms of their proprietary lease. (Note: rent stabilized and rent controlled tenants in place before a building’s conversion to a coop retain their rights as rent-regulated tenants, and are not subject to the coop’s or condo’s laws.)
• Rent stabilized tenants DO have the right by law to sublet, but rent controlled tenants DO NOT, unless they have a current or prior lease containing a clause that permits them to sublet. (Rent stabilization is the larger of the rent-regulation systems. Rent control applies only to tenancies that began before 1971.)
• Tenats with rent subsidies: Tenants who receive Section 8, FEPS, or another rental subsidy; who are in the SCRIE or DRIE program; or who are in a program where the rent is based on income-eligiblity, may be in violation of their program’s rules if they sublet, and are advised to seek legal counsel and check their program’s rules before subletting.

Illegally subletting is grounds for eviction. Tenants are advised to follow proper procedures.

What is the procedure I must follow when seeking to sublet my apartment?

For tenants who have the right to sublet, certain procedures must be closely followed. Ignoring these steps and proceeding to sublet without the consent of the landlord can lead to eviction. Tenants in rent stabilized apartments must show that they intend to keep the apartment as their primary residence, and that they intend to return to the apartment.

The procedures are:

1.Send a letter to the landlord by certified mail, return-receipt requested, asking permission to sublet. (Copies of this and all other correspondence sent to the landlord should be kept in a safe place.) 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 later. You can always return early.
• The name of the proposed subtenant. (Chose a subtenant from among acquaintances 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, which statement must be signed and notarized.

2. Within ten days after mailing the initial request, your landlord is allowed to ask for additional information to enable the landlord to determine if rejection of such a request will be unreasonable. Expect a list of inquiries about the proposed sublessee’s resources and rental history.

3. Within thirty days of mailing the initial notice, or of mailing the additional information if requested by the landlord, your landlord must send you a notice of consent to the sublet, or reasons for refusal. 

What are my obligations if my landlord accepts my request to sublet?

If your landlord consents to the sublet, you may sublease to the tenant whose information you provided to the landlord, and you will remain liable for future rents if your subtenant fails to pay the rent.

Rent stabilized tenants have additional responsibilities and obligations. Read further on this page for an explanation of those obligations. 

What grounds are considered “reasonable” for a landlord to refuse my request to sublet?

If your landlord reasonably withholds consent, you cannot sublet, and the landlord does not have to release you from the lease

Valid reasons for denying a sublet are:

• your failure to follow proper procedures in requesting permission, including failing to provide the minimum information required by law
• you did not demonstrate a valid reason for being away (good reasons include: going away for a temporary job assignment, going to school or an educational program; caring for a sick relative; serving in the military)
• you did not show that you intend to return to the apartment (for example, you are subletting because you bought a house in New Jersey and want to see how you like it; you took a permanent job in another part of the country)
• the proposed subtenant does not qualify because he or she:
  • does not have a stable source of income that is sufficient to be able to afford the rent
  • has a poor credit history, or insufficient credit history
  • has a criminal record
  • has a history of having been sued for eviction by previous landlords

If my landlord does not meet required deadlines to respond to my sublet request, may I proceed with the sublet?

If your landlord fails to send such a response within the application time, this shall be deemed consent (approval) of the sublet request. (Sending your request certified mail, return-receipt requested, and keeping the receipt as well as the letter, will be some or all of your proof.)

What if my landlord unreasonably denies my request to sublet? What constitutes ‘unreasonable’ grounds?

If your landlord unreasonably withholds consent for your sublet, you may go ahead with the sublet – but be prepared to defend your action in a housing court eviction case. The law allows you to get the landlord to pay your legal expenses if you have to go to court to defend yourself in an eviction case and you win. Unreasonable denials are usually baseless statements such as your subtenant cannot afford the apartment, you do not intend to return to the apartment, or your subtenant is unreliable. If you have proof that these accusations are untrue, you can use them in if the landlord takes you to court. However, you might want to check with a lawyer experienced with subletting issues before proceeding with a sublet after your landlord denies your request. 

What are my additional obligations, responsibilities, and rights as a rent-stabilized tenant when subletting?

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. The landlord can collect a surcharge equal to the sublet allowance (this is set by the Rent Guideline Board each year in June) if there is one, for the length of the sublet only.

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.

You have the right to a renewal lease, and if your building undergoes conversion to condominium or cooperative ownership, you have the rights of a resident

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. 

What can I do if my landlord accuses me of illegally subletting?

If your landlord rejects a proposed sublease, it is strongly recommended that you consult an experienced attorney before proceeding with any sublet.