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Is apartment swapping legal in New York City?

Even if no money changes hands, you could still be violating your lease or building rules.

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Question:

I know renting out my apartment on Airbnb is illegal in NYC, but what about swapping it for vacation for a couple of weeks, where no money changes hands? Could this cause any problems for renters with their landlords? What about co-op or condo owners, if apartment swapping means breaking building rules or your proprietary lease?

Answer:

Even though no money is changing hands, and you're not using a service like Airbnb, this could still be violating city law and building rules, our experts say. Short-term rentals are strictly regulated by the city, and it's illegal to rent out your apartment for a period shorter than 30 days if you will not also be present in the apartment during that time. 

"With apartment swapping, you're still getting and giving something of value, so that could be seen as a short-term rental," says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations (and FYI, a Brick sponsor).

But even if your apartment swap will be for longer than 30 days, you could end up in hot water with your landlord if you're a rent-stabilized tenant.

"That would probably be considered illegal subletting," Himmelstein says. (Note, in order to legally sublet as a stabilized tenant, you have to follow specific guidelines.) "Subletting is curable, though, so by the time the landlord would be able to do anything about it, you could cure the situation [by returning to your apartment] and probably won't get in any trouble."

Market-rate leases prohibit subletting without first getting your landlord's approval, but the multiple dwelling law does allow for home exchanges for 30 days or less, if no money is exchanged. However, if your landlord finds out you're doing a swap and doesn't like the idea, they could always opt not to renew your lease.

For homeowners, too, apartment swapping can have consequences if it's prohibited in your building's bylaws. 

"Before even considering entering into such an arrangement, the apartment owner should carefully review the guest provisions and subletting provisions contained in the proprietary lease or condominium by-laws," says Jeffrey Reich, a partner at Schwartz Sladkus Reich Greenberg Atlas LLP. "Many such provisions limit the use of an apartment by a guest to times when the apartment owner is also present."

Co-op shareholders, in particular, should make sure they don't run the risk of being accused by their boards of objectionable conduct

Finally, beyond all the legalities, there's another reason to proceed with caution: The possibility of your guests bringing along pests. 

"People often underestimate all the ways pests can access our living space and disrupt our quality of life. This option does present challenges that hotels face in terms of possible bed bug introduction, just at lower risk," says pest control expert Gil Bloom of Standard Pest Management. "Consider placing one of several quality bedbug monitors, or at the least performing a thorough inspection upon return." 


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