Ask Sam: Can I use my rent-stabilized apartment as an Airbnb?
- A new NYC law requires hosts to register their short-term rentals
- Stabilized tenants have limits on what they can charge guests
I’m a rent-stabilized tenant and I’m interested in occasionally renting out my unit on Airbnb. What do I need to know about the new short-term rental laws in New York?
The new law, which requires New York City owners and renters to register their short-term rentals with the Mayor’s Office of Special Enforcement, will make it much easier for landlords to find out if you’re listing your place on Airbnb, says Sam Himmelstein, a lawyer at Himmelstein, McConnell, Gribben & Joseph who represents residential and commercial tenants and tenant associations.
And the rules regarding short-term rentals in NYC are already strict—and even more so for rent-stabilized tenants.
“It’s illegal to rent your apartment for less than 30 days in any multiple-dwelling—that is, buildings with three or more apartments—if you’re not also present in the apartment during that time,” Himmelstein says. “You can’t have someone come and stay in your apartment for periods less than 30 days if you’re not there.”
Renters can host guests in their apartments for longer than 30 days when they're not present if they go through the right procedures for subletting under Real Property Law 226-b.
Stabilized tenants must take extra care when renting out or subletting their units, or they risk eviction.
“Rent-regulated tenants really have to be careful, because under the rent stabilization code they cannot collect rent over a certain amount,” Himmelstein says.
If you have a roommate or roommates, the most you can collect as a stabilized tenant is the total rent divided by the number of tenants and roommates. In other words, if your rent is $2,000 a month and you have one roommate, the most you could collect from a roommate is $1,000 a month. For daily rentals, you’d be expected to divide that by 30 and charge no more than the correct daily rate.
In order for someone to qualify as a roommate, the apartment must be shared with the tenant. If you legally sublet the apartment—meaning that the tenant is absent for a period of up to two years—the most the tenant can charge is the rent they are paying, with a 10 percent permissible surcharge if the apartment is fully furnished. Stabilized tenants also must strictly follow the sublet statute alerting their landlord to their plans to sublease.
“If you don’t follow the rules for subletting an apartment sharing set forth in the Real Property Law and the Rent Stabilization Code and you Airbnb your apartment, you could be brought into court on a nuisance holdover,” Himmelstein says. “And if you overcharge a subtenant, that could be deemed an incurable breach of your tenancy.”
In both cases, you risk losing your apartment. And the new database law makes it much easier for your landlord to find out if you’re renting out or subleasing your apartment without permission.
Landlords are less inclined to pursue eviction cases against stabilized tenants, in the wake of rent reform legislation passed in 2019 that make it much more difficult for them to deregulate stabilized units. But that doesn’t mean you should ignore the short-term rental laws.
“Often it’s the other tenants in the building who get upset about neighbors hosting on platforms like Airbnb,” Himmelstein says. “They feel that it makes the building insecure, and they sometimes complain to the landlord about it. Then the landlord might be worried about their liability and pursue an eviction case against the tenant.”
In other words, even though there is less incentive now for landlords to evict stabilized tenants, they could pursue a case against you if you try to skirt short-term rental laws. Your best bet, if you want to sublease, is to do so with the landlord’s approval, which cannot be unreasonably withheld if you follow the proper procedures.
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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.