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Ask Sam: I’m rent-stabilized. What is the procedure for subletting my apartment?

Rent-stabilized tenants are legally allowed to sublet, but they have to follow specific guidelines.

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Question:

I live in a rent-stabilized apartment. Am I allowed to sublet it? What are the rules for subletting?

Answer:

“No matter what your landlord tells you about subletting as a rent-stabilized tenant, you have the right to sublet,” says Sam Himmelstein, a lawyer with the firm Himmelstein, McConnell, Gribben, Donoghue & Joseph LLP who represents residential and commercial tenants and tenant associations.

Section 226-B of the New York State Real Property Law—passed in 1983—permits stabilized tenants to sublet, but they must follow specific guidelines governing their subleases that don’t apply to market-rate tenants.

“What's really important in any subletting is that you follow procedures set forth to the letter,” Himmelstein says.

Documentation

Your first step is to submit a written request to your landlord, at least 60 days in advance of when you intend to begin subletting. Your landlord then has 10 days to ask you for additional information in a questionnaire (more on that below), and then another 30 days from when you mail them back to respond to the sublease request.

“One big no-no is that you cannot move the subtenant in before the landlord has had the opportunity to consent,” Himmelstein says, which is why you want to leave yourself and your landlord plenty of time to handle the paperwork.  

Your written request must include your proposed subtenant’s name and home and business addresses, as well as where you’ll be living during the sublease period. You’ll also need to draft a sublease (for which you can find templates online), and attach that to your original and current renewal leases.

Remember that the subtenant must follow the rules set forth in your original lease. For instance, if your lease forbids pets, your subtenant can’t have one, either.

You and your subtenant must sign an “acknowledgment” of both the over-lease and the sublease in the presence of a notary. Then, send the documents to your landlord via certified mail.

The landlord’s response

By law, your landlord cannot “unreasonably refuse consent” to your sublease. What constitutes “unreasonable,” Himmelstein points out, can be subjective. That said, you don’t have to demonstrate that you’re subletting out of need.

“It could be that you want to travel for a year, or have chosen to go teach somewhere for a year, or your band is touring for a year,” he says. “There just needs to be a bona fide reason why you're going to be out of the apartment.”

Your landlord may send you a questionnaire to learn more about your proposed subtenant and to elaborate about your reason for subletting, which can’t be “unduly burdensome.” Himmelstein says this means that your landlord “can ask almost anything about the subtenant that they would ask of a tenant who was applying: their finances, job history, bankruptcies, credit reports, recommendations.” 

Note, though, that the landlord can’t use this as an opportunity to rescreen you as a tenant by asking for your financial information again.

Once you return the questionnaire, the landlord has four options: “The landlord can ignore your request, which is a deemed consent, and the tenant can go ahead with the sublease,” Himmelstein says. “The landlord can deny your request and give no reason, which is taken as consent because it's considered unreasonable. They can consent, which is easy. Or they can deny the request and give you a reason.”

“Reasonable grounds” for refusal includes factors like the proposed subtenant lacking visible income, having poor credit, or having a criminal history.

What to do if your landlord refuses your request

If you suspect your landlord’s reason for denying your request would be legally considered “unreasonable,” you could opt to go ahead with the sublease anyway.

“The landlord may then bring an illegal sublet holdover against the tenant. They’ll serve a notice to cure and then a notice to terminate your lease, bring you to court, and claim you’re illegally subletting,” Himmelstein says. “The tenant can defend themselves on the basis that they followed the statute and the landlord’s refusal was unreasonable.”

If the court decides that you’re in the wrong, this would be considered a “curable” breach of your tenancy. You can remedy the issue by getting your subtenant to move out, by taking substantial steps to do so, and/or by resuming occupancy of the apartment. Keep in mind that being taken to housing court will likely land you on the tenant blacklist.

Rules for subletting a stabilized apartment if you get this far

If all goes smoothly and you get permission to sublet, you’ll have to abide by specific rules as a stabilized tenant.

You cannot overcharge for your apartment: The most you’re permitted to charge is rent, plus an additional 10 percent if you are providing a fully furnished unit.

“If the landlord finds out you’re charging more, the courts may say overcharging is incurable,” Himmelstein says, which could mean losing your lease—and having to pay your subtenant damages.

You can also only sublet for up to two years within a four-year period, and if you want to switch subtenants, you must go through the process of sending a new request to your landlord.  You can sublet for up to two years even if your lease is scheduled to expire during the sublease term.

If you sublet to the same person for two years, the renewal lease will still be sent to you. You’ll also retain all your rights as the tenant.

Finally, Himmelstein says, “Never use Airbnb or similar services to do a sublet.”

Remember that just as you have the right to sublet, your landlord has the right to screen subtenants. 

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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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