Dear Sam: I just got a temporary job in California and I want to sublet my rent-stabilized apartment. I read my lease and it seems to say I can't. I asked my landlord and he said that if I sublet he'll evict me. Do I have a right to sublet, and if so, for how long? How much am I allowed to charge the subtenant?
Believe it or not, you actually are allowed to sublet your rent-stabilized apartment—within reason, that is. There's a section of New York Real Property law granting renters (even in stabilized apartments) the right to take on a subletter, so long as your building has four or more units, and isn't a co-op or a government subsidized building like a Mitchell-Lama. "The law is sort of like a how-to of exactly what you have to do," says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations. "You have to follow it to the letter." (One thing to note: these rules don't apply to rent controlled tenants, who don't have any legal rights to sublet.)
If you want to accept the gig out west without losing your apartment (or losing money paying rent on a place you're not living in), here are the key factors to keep in mind:
- How long you can sublet: In order to prevent people from turning subsidized apartments into investment properties, and to insure that the prime tenant keeps the apartment as their primary residence, there are specific restrictions on how long you can set someone up in your apartment. Stabilized tenants can only have a subletter in place for 2 years out of any given 4 year period. Additionally, the apartment has to be your primary residence, and you need to have clear plans to move back in at the end of your subtenant's lease. "If you say you’re subletting because you just bought a house in Montclair, you have two kids, and the apartment's a one-bedroom, it's pretty clear you aren't coming back and the landlord can reasonably refuse," says Himmelstein. One nice little boon for rent-stabilized renters: since your landlord is legally obligated to offer you a lease renewal, you can give a subtenant a two year lease, even if there are only six months left on your current contract.
- How much you can charge: Again, don't go into this hoping to turn your stabilized digs into a money-making operation. (If you overcharge, your subtenant and your landlord are well within their legal rights to sue you and evict you, respectively.) You can't charge your subtenant more than your actual rent, unless you're giving them the apartment fully furnished, in which case you can charge 10 percent above your legal rent. And even then, you'll likely be breaking even, at best; the landlord is allowed to ask for a sublet surcharge, which is currently 10 percent. The logistics depend on the landlord, but your best bet is likely to have your subtenant send their rent to you, and then pay the landlord yourself.
- What to include in the contract: It's important to write up a clear sublease laying out the arrangement with your subtenant, both to stay on the right side of the law, and to protect yourself. Specify the start and end date of the lease, and how much they'll be paying. If you'll be getting a new lease during their stay, include a clause saying you can raise their rent if the landlord raises yours. Also include a clause that if your subletter violates the lease and you end up suing them (and/or getting sued by your landlord), they'll be responsible for your legal fees.
- How to ask your landlord: To pull this off, you'll need to make things very official. Send your request to sublet via certified mail with a return receipt request, and include the dates of the sublet, your reason for subletting, the name and permanent home and business address of your proposed subletter, the address where you can be reached while subletting, a copy of your proposed sublease, and a copy of your lease with the landlord. "The landlord is allowed to ask for additional information," explains Himmelstein, usually the typical questions they'd ask of any tenant. Once you submit responses to their questions, the landlord has 30 days to respond, and if they don't, that counts as defacto approval. "If you present them with someone who has a steady income, can clearly afford the rent, and has a decent background, it will be hard for them to say no," Himmelstein adds.
- What to do if the landlord says no: If the landlord refuses and doesn't have what seem like reasonable grounds to do so, it's an option specifically authorized by the sublet law—albeit a risky one—to have the subletter move in anyway, and let the landlord decide if they'll take you to court over it. "If they sue you and your defense is that you sublet in accordance with the law, your landlord's case can be dismissed," says Himmelstein. "That's why it's really important to do things exactly the way the law requires." However, landlords are often wary of pursuing illegal sublet cases, since a court would likely require you to "cure" the situation by moving back in and/or removing the subtenant. "If they win, they don't get the apartment back," says Himmelstein. But don't think that means you can do whatever you want and hope your landlord doesn't bother to prosecute. "Many landlords will wait until the lease expires, then bring a non-primary residence case," which could lose you your rent-stabilized apartment altogether.
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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.