It is important to note that these FAQs are not intended as a substitute for the definitions, interpretations, etc., contained in the respective rent regulatory statutes, codes, and regulations themselves, or any administrative or court decision construing such statutes, codes, and regulations, or any order of the New York City or County Rent Guidelines Boards.
- Am I legally entitled to sublet my rent stabilized apartment, and how much can I charge?
- I am subletting. Can I take over the lease?
- May I buy a new residence and sublet my current rent stabilized apartment?
- Can my landlord deny my request to sublet without reasonable grounds?
- What can I do if I’m subletting and just found out I’m being overcharged?
Am I legally entitled to sublet my rent stabilized apartment, and how much can I charge?
You are entitled to request permission to sublet from the owner, and the owner may not unreasonably refuse such permission. However, you must inform the owner by certified mail, return receipt requested, no less than 30 days prior to the proposed subletting. Your request must contain the following:
- 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
- your address for the term of the sublease
- written consent from any co-tenant or guarantor on the lease
- a copy of the proposed sublease (along with a copy of your lease, if available) acknowledged by the prime tenant and subtenant as a true copy of the sublease
The landlord has ten days to ask for additional information which you must provide so long as the request is not unduly burdensome. If the landlord fails to respond to the sublet request within 30 days, then a failure to respond is deemed consent. If the landlord unreasonably withholds consent the tenant may proceed with the sublet. If the owner commences a legal action challenging the sublet and the tenant prevails in demonstrating that the withholding of approval was unreasonable or that the landlord acted in bad faith, the tenant may recover his or her attorney’s fees.
Current rent guidelines (Orders 51 and 52) do not permit a landlord to charge an additional sublet allowance. However, rent guidelines in the past have permitted a sublet allowance that was effective with the commencement of the sublet, and which was rescinded once the subtenancy ended and the prime tenant returned. When there was a sublet allowance, it could be passed along to the subtenant.
Separate from any applicable landlord sublet allowance, a prime tenant is permitted to charge up to an additional 10% (at the prime tenant’s discretion) if the unit is fully furnished.
Be sure to follow all of the rules in subletting. For detailed information, read HCR Fact Sheet #7: Sublets, Assignments, and Illusory Tenancies.
I am subletting. Can I take over the lease?
Under state law, the owner must provide written consent before the primary tenant can “assign” (transfer) the lease to you. The owner does not need to give you a reason if he or she does not consent to the assignment. For detailed information, check out HCR Fact Sheet #7: Sublets, Assignments, and Illusory Tenancies.
May I buy a new residence and sublet my current rent stabilized apartment?
As a rent stabilized tenant, you have the right to sublet your apartment under certain circumstances (visit the 1st question above) but you must always maintain that apartment as your primary residence. For example, if you wish to sublet while you take a temporary job assignment, or you are in the military service or college, or you expect to spend four months wintering in Florida, you may still be considered a primary resident. You may not sublet if you have another primary residence. If you do, the landlord may successfully terminate your tenancy in court. This could be expensive. If your lease has an attorney’s fees clause and you lose, you may have to pay the landlord’s attorney’s fees.
For more information on subletting a rent stabilized apartment, see HCR Fact Sheet #7: Sublets, Assignments, and Illusory Tenancies.
Can my landlord deny my request to sublet without reasonable grounds?
Under the law a landlord cannot unreasonably withhold the right to sublet. However, the landlord can refuse to sublet with good reason. For instance, if the proposed tenant has a poor credit history, is unemployed, etc. the landlord could refuse to sublet. If you proceed with a sublet after it has been reasonably rejected by the landlord, you may face eviction. Such breaches of the lease are “curable” however. If you lose the case you may keep the apartment by having the subtenant promptly move out (usually within ten days of judgment). Even if you cure, you may still have to pay the landlord’s attorney’s fees if your lease has an attorney’s fees clause.
On the other hand, if the landlord refused to sublet simply because of the tenant’s race, ethnicity, religion, etc. this would not be a proper reason. Or, if the landlord did not provide a reason or provided a reason that is clearly spurious, you could proceed with the sublet.
If a proposed subtenant has been unreasonably refused, you may proceed with the sublet and defend any challenge brought by the landlord. If the court agrees with you, you can recover your attorney’s fees. For more information on housing court in New York City, see our resources on housing court on our Legal Assistance page.
What can I do if I’m subletting and just found out I’m being overcharged?
If your apartment is rent stabilized, you can contact NYS Homes and Community Renewal (HCR), the state agency which administers the rent laws.
According to the rent stabilization laws, the prime tenant may not demand “key money” or overcharge the subtenant. If the prime tenant overcharges, you may file a “Tenant’s Complaint of Rent and/or Other Specific Overcharges in a Rent Stabilized Apartment” (Form RA-89). If HCR finds that the prime tenant has deliberately overcharged you, then they may be required to refund to you three times the overcharge. Also read HCR Fact Sheet #7: Sublets, Assignments, and Illusory Tenancies.
If your apartment is not rent-stabilized, the following organizations may be able to assist you:
- NYS Tenant & Neighbors Coalition 212-608-4320
- M.E.T. Council 212-979-6238