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Subleasing Your Apartment

Real Property Law Section 226-b in conjunction with the Rent Stabilization Law gives tenants the right to sublease their apartment for a period of two out of every four years. In order to sublease an apartment, it is necessary that prior to the subleasing that the apartment be the tenants’ primary residence.
The procedure for subleasing is quite complicated. The tenant must first submit a sublet request by certified mail-return receipt requested to its landlord. The sublease request must provide the following information:

a. The name, permanent address and business address of the proposed subtenant.
b. The tenant’s reason for subleasing
c. The address of the tenant during the sublease period.
d. The term of the sublease.
e. The rent being charged to the subtenant.
f. A copy of the proposed sublease signed by the guarantor and any cotenants. A copy of the overlease should be attached to the sublease, if available.
g. An acknowledgement executed before a notary public by the tenant, cotenant, proposed subtenant and any guarantors that the proposed sublease is authentic.

Within 10 days after receiving the sublease request, the landlord may mail a questionnaire to the tenant and subtenant. The questionnaire may request documents, information or ask any questions which the landlord reasonably believes will aid it in determining the veracity of the sublease request.
The sublease may not begin earlier than 30 days after the tenant mails the initial sublease request or not earlier than 30 days after the tenant submits the additional information requested by the landlord, whichever is later. If the tenant prematurely begins the sublease, the tenant will be deemed to be in breach of his/her lease and may be evicted.

If the landlord consents to the sublease or does not reply within the applicable time period, the tenant may proceed with the sublease. If the landlord denies the sublease request and the tenant believes that the denial was unreasonable the tenant has one of two options available.

1. The tenant may proceed with the sublease. The landlord may thereafter commence a holdover proceeding claiming that the tenant illegally subleased the apartment. The tenant will counter that the landlord unreasonably withheld its consent to the sublease request. At trial the judge will determine which party is correct. If the tenant prevails the sublease may continue and the tenant will be entitled to recover his/her attorneys fees. If the landlord prevails, the tenant will be required to have the subtenant vacate the apartment within 10 days of the court’s judgment or both the tenant and subtenant will be evicted. Additionally, in that situation, the landlord will be entitled to recover its attorney’s fees from the tenant.

2. The tenant may commence a Supreme Court Declaratory Judgment action in the county in which either the property is located or the landlord maintains its office. The Judge will then determine whether or not the landlord reasonably denied the sublet request. If the court rules in favor of the tenant the tenant may proceed with the sublease. If the court rules against the tenant, the tenant may not proceed. The prevailing party in the litigation will be entitled to recover his/her attorney’s fees.

Sublease Rent

A tenant who sublease a rent stabilized apartment is not entitled to charge any rent above the rent that is being paid to the landlord. However, if the apartment is fully furnished, the tenant is allowed to charge the subtenant not more than 10% above the rent that is being paid to the landlord. Additionally, the landlord is entitled to collect an additional rental amount equal to the then prevailing vacancy increase for rent stabilized leases during the sublease period.

It is imperative that a tenant not overcharge rents to the subtenant. If a tenant overcharges a subtenant, the tenant will be liable to the subtenant for three times the amount of the overcharge (treble damages) plus the subtenant’s attorney’s fees. Additionally, the tenant will be evicted from his/her apartment and also be responsible for the landlord’s attorney’s fees.

The text of Real Property Law Section 226-b follows:

(b) The tenant shall inform the landlord of his intent to
sublease by mailing a notice of such intent by
certified mail, return receipt requested. Such request
shall be accompanied by the following information: (i)
the term of the sublease, (ii) the name of the proposed
sublessee, (iii) the business and permanent home
address of the proposed sublessee, (iv) the tenant’s
reason for subletting, (v) the tenant’s address for the
term of the sublease, (vi) the written consent of any
co-tenant or guarantor of the lease, and (vii) a copy
of the proposed sublease, to which a copy of the
tenant’s lease shall be attached if available,
acknowledged by the tenant and proposed subtenant as
being a true copy of such sublease.

(c) Within ten days after the mailing of such request, the
landlord may ask the tenant for additional information
as will enable the landlord to determine if rejection
of such request shall be unreasonable. Any such request
for additional information shall not be unduly
burdensome. Within thirty days after the mailing of the
request for consent, or of the additional information
reasonably asked for by the landlord, whichever is
later, the landlord shall send a notice to the tenant
of his consent or, if he does not consent, his reasons
therefor. Landlord’s failure to send such a notice
shall be deemed to be a consent to the proposed
subletting. If the landlord consents, the premises may
be sublet in accordance with the request, but the
tenant thereunder, shall nevertheless remain liable for
the performance of tenant’s obligations under said
lease. If the landlord reasonably withholds consent,
there shall be no subletting and the tenant shall not
be released from the lease. If the landlord
unreasonably withholds consent, the tenant may sublet
in accordance with the request and may recover the
costs of the proceeding and attorneys fees if it is
found that the owner acted in bad faith by withholding

3. The provisions of this section shall apply to leases entered
into or renewed before or after the effective date of this
section, however they shall not apply to public housing and
other units for which there are constitutional or statutory
criteria covering admission thereto nor to a proprietary
lease, viz.: a lease to, or held by, a tenant entitled
thereto by reason of ownership of stock in a corporate owner
of premises which operates the same on a cooperative basis.

4. With respect to units covered by the emergency tenant
protection act of nineteen seventy-four or the rent
stabilization law of nineteen hundred sixty-nine the
exercise of the rights granted by this section shall be
subject to the applicable provisions of such laws. Nothing
contained in this section two hundred twenty-six-b shall be
deemed to affect the rights, if any, of any tenant subject
to title Y of chapter 51 of the administrative code of the
city of New York or the emergency housing rent control law.

5. Any sublet or assignment which does not comply with the
provisions of this section shall constitute a substantial
breach of lease or tenancy.

6. Any provision of a lease or rental agreement purporting to
waive a provision of this section is null and void.

7. The provisions of this section except for items in paragraph
(b) of subdivision two of this section not previously
required, shall apply to all actions and proceedings pending
on the effective date of this section.

8. Nothing contained in this section shall be deemed to prevent
or limit the right of a tenant to sell improvements to a
unit pursuant to article seven-C of the multiple dwelling law.

Issues concerning the subleasing of apartments tend to be very complicated and time consuming.

Parties should speak with an attorney before proceeding. We offer complimentary consultations.

You are welcome to schedule your complimentary-no obligation consultation by calling us at 212-921-1600.