Ask Sam: What are my rights as a subletter of a rent-stabilized apartment?

First, it’s important to make sure you have followed the procedure for legally subletting, says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations. “The only way to be a legal subtenant is to get the landlord’s consent,” Himmelstein says.

Rent-stabilized tenants have the right to sublet their apartments, but they must submit a written request to their landlord. To be safe, the request should be sent at least 60 days before they plan to begin subletting. The landlord then can ask tenants to complete a questionnaire about their intended subtenant before granting approval. Tenants can go ahead with a sublet if their landlord “unreasonably” refuses to consent to it; doing so could land them in Housing Court, but they have a defense if they can prove the landlord had no cause to refuse. (Read more about this process here.)

If the landlord has agreed to your subtenancy, remember that your time as a subletter is limited.

“Under the rent stabilization code, the tenant can only sublet for two years out of any four-year period,” Himmelstein says. “If the prime tenant and subtenant have the landlord’s consent, but now the sublease is coming to an end, the subtenant has to leave.”

The reason for this law is that if the prime tenant sublets for more than two years, the apartment could, depending on the circumstances, no longer be considered their primary residence—a requirement of remaining a rent-stabilized tenant. And if you don’t move out when your legal subtenancy is up, the landlord could start an illegal sublet holdover proceeding in Housing Court against both you and the prime tenant.

While you are living in the apartment during the permitted two-year period, you have many of the same rights that a stabilized tenant has. You can’t be charged more than the rent that the prime tenant pays, unless you’re renting the apartment fully furnished, in which case a 10 percent surcharge is permitted.

“Your rights are the same in terms of repairs and services, and you’re safe from eviction unless you commit a nuisance or stop paying rent,” Himmelstein says. “If you’re not getting necessities like hot water and heat, you could bring an HP proceeding to compel the landlord to provide these things.”

And there is a route for subtenants to become prime tenants. If the alleged prime tenant sublets an apartment but has not been in physical occupancy for a long period of time and doesn’t maintain it as their primary residence, they could lose the lease. In this event, the subtenant could take it over.

“If the tenant appears to have essentially abandoned the apartment and is using it as a way to make money, the subtenant could say they’re a victim of an illegal tenancy scheme and become the legal tenant of that apartment,” Himmelstein says.

In order to prevail on such a claim, the subtenant would have to show that the prime tenant overcharged them and the landlord had actual or constructive knowledge of the subtenant’s occupancy. Constructive knowledge can be established by showing that the landlord’s employees—a superintendent, doorman, porter—had knowledge of the subtenant’s presence. 

Less dramatically, if the prime tenant decides to surrender the apartment and the landlord approves, the subtenant could take over the lease.

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Sam Himmelstein, Esq. represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts, and many other issues. He is a partner at Himmelstein, McConnell, Gribben, Donoghue & Joseph in Manhattan. To submit a question for this column, click here. To ask about a legal consultation, email Sam or call (212) 349-3000.