Ask Sam: How do I make the switch from subletter to tenant of a rent-stabilized apartment?

You might be entitled to become the tenant through a legal doctrine known as illusory tenancy, but this could put you at odds with the primary tenant you are subletting from, says Sam Himmelstein, an attorney at Himmelstein, McConnell, Gribben & Joseph who represents residential and commercial tenants and tenant associations.

First, a bit about subletting: Many leases include language forbidding subletting, but New York State Real Property Law states that tenants can sublet, provided they send notice, share required information, and answer any questions the landlord has. Plus, landlords cannot unreasonably refuse to consent to a sublet.

For rent-stabilized tenants, there are additional rules: They can only sublet their apartment for two years out of any four-year period. This is because a requirement of remaining in a stabilized apartment is that it’s the tenant’s primary residence.

“In this case, since you’ve been subletting for several years, it looks like the apartment is not the tenant’s primary residence,” Himmelstein says.

This is grounds for the primary tenant to be evicted. But since the passage of the Housing Stability and Tenant Protection Act, which did away with vacancy deregulation (a law that allowed landlords to raise the rent on stabilized apartments when a tenant moved out and remove the apartment from rent regulation), landlords now see little financial incentive to evict stabilized tenants, even if they are illegally subletting.

“It seems like the landlord is content with this arrangement,” Himmelstein says. “If he doesn’t object, there’s nothing illegal about the arrangement in and of itself.”

In other words, you could just continue as subletter. But if you are determined to become the primary tenant, there may be another option.

“In general, there are three ways a subtenant could become the tenant: if the primary tenant wants to surrender the apartment and the landlord agrees, through succession, or through the doctrine of illusory tenancy,” Himmelstein says.

Succession would not apply in this case; read about the rules for succeeding a rent-stabilized tenant.

Illusory tenancy might, though. This doctrine, established by a case known as Primrose v. Donahoe, sets forth criteria through which a subtenant could become a primary tenant in a stabilized apartment.

“For the subtenant to take over the lease, there has to be long-term subletting, profiteering—that is, the subtenant is paying the primary tenant more than the legal rent—and the landlord must know that the apartment has been sublet,” Himmelstein says.

On that last point, Himmelstein adds, the landlord has to have actual or constructive knowledge of the subletter. Actual knowledge would mean the subletter communicated to the landlord in some way that they were living in the apartment, and constructive knowledge could entail another of the building staff seeing the subtenant living in the apartment, or the landlord receiving a rent check in the subtenant’s name.

“Somehow the knowledge was imputed to the landlord,” Himmelstein says. “If those three elements are there, you have an illusory tenancy and the subtenant could become the tenant.”

If all three apply in your case, and the landlord files an illegal subletting or non-primary residence eviction case against the tenant, you could appear in housing court and defend yourself on the basis of an illusory tenancy scheme.

Obviously, this could put you at odds with the primary tenant, but it seems as though they are no longer interested in living in the apartment.

As for your spouse, “if you ever become the primary tenant, either because the landlord agrees or through winning an illusory tenancy case, you will then be able to add your wife to the lease,” Himmelstein says.

Related: 

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

Ask Sam: I'm rent-stabilized. What is the procedure for subletting my apartment? (sponsored)

Ask Sam: Will I lose my rent-stabilized apartment if I have to leave town to care for a sick relative? (sponsored)

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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 & 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.