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Ask Sam: Can I do an apartment swap over the holidays if my apartment is rent stabilized?

It's a cheap way to vacation, but is it legal?  

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Question:

I arranged a holiday apartment swap with a friend from abroad for about 10 days. I'll stay in their place while on vacation and they'll stay in my rent-stabilized apartment. Is there any provision of a standard rent-stabilized lease that would prohibit this?

Answer:

There isn't much case law on this type of arrangement, but if it's a one-time swap, you're probably okay, says Sam Himmelstein, a lawyer with the firm Himmelstein, McConnell, Gribben, Donoghue & Joseph LLP who represents residential and commercial tenants and tenant associations. 

"Technically, if someone were in your apartment when you weren't there, it's considered a sublet," Himmelstein says. And while subletting a rent-stabilized apartment is legal—even if your lease has a provision saying it isn't—there are specific procedures you must follow to abide by the rent stabilization code. (Sam covers these procedures in more detail here.) 

However, since the swap is short-term and no money is changing hands, the usual sublet rules may not apply here. 

"Historically, the courts have held that compensation [for an apartment stay] doesn't have to be monetary," Himmelstein explains. "But now you have section of the multiple dwelling law that says it's okay to have incidental and occasional occupancy for fewer than 30 days when a person is absent for vacation, provided there is no monetary compensation." 

Should your landlord discover the swap and object, it's unlikely that this would hurt your tenancy, Himmelstein says. In the event of an illegal sublet of a rent-stabilized apartment, landlords are required by law to serve a 10-day "notice to cure"—that is, they must give the stabilized tenant 10 days to remedy the situation.

Should the tenant fail to get rid of the subletter, the landlord must then serve a seven-day notice of lease termination, at which point the matter goes to housing court. And if the tenant loses the case, he or she still has another 10 days after the verdict to address the problem before the landlord can evict.

In your situation, you would easily "cure" the apartment swap long before your landlord could bring eviction proceedings against you. 

"On a practical level, because of the way they'd have to initiate steps to enforce the lease, they really can't do very much," Himmelstein says. 

However, note that the multiple dwelling law states that only "incidental and occasional occupancy" of your apartment by a guest "for fewer than 30 consecutive days" is legal. 

"You can't do this a lot. Once or twice a year when you go away is fine, but not every month," Himmelstein says. "Then you're going to be in trouble." 

 

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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 at [email protected] or call (212) 349-3000.

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