In New York State, tenants have a right to sublease their apartments. Most leases require the landlord's written permission. The landlord is not allowed to refuse permission "unreasonably," but the method of getting permission is tightly regulated. If you do not carefully follow the procedures for obtaining permission to sublet, your landlord may sue you for violating a substantial obligation of your lease. The rent stabilization law also gives landlords the right to collect a vacancy rent increase during the term of the sublet.
For the subtenant, the original leaseholder is called the over-tenant. The safest arrangement is to be sure that you have the landlord's permission to sublet before you move in, and then to pay the rent directly to the landlord. If you pay the over-tenant faithfully every month, don't assume the landlord is receiving the rent in a timely manner. Like several clients McAdams Law represented, you may wake up one day to find an eviction notice taped to your door, and be in a crisis.
To gain maximum protection of your rights it's best to negotiate for your name to be added to the lease. However, this will make you a co-tenant, not a subtenant, and has certain implications. First, the primary tenant may not agree to this arrangement. But if the over-tenant or you are sued in Housing Court, this may be the deciding factor in whether you are able to stay in the apartment. So it can be worth negotiating this point, depending on your needs and the over-tenant's situation.
Secondly, when you leave be sure to get your name off the lease, before vacating. Otherwise you may still be sued for nonpayment or eviction if the over-tenant doesn't pay the rent, or violates other lease obligations.
If you're a victim of illegal subletting, you may be entitled to thousands of dollars
in rent overcharges and damages. If you live in a sublet, it's possible you are a victim of an "illusory tenancy" perpetrated by your landlord. An illusory tenancy is a tactic used by unscrupulous landlords, and sometimes even tenants who sublet, to obtain higher profits on regulated apartments than the law allows. Here's an example of how it works…
Let's say the legal regulated rent a tenant pays before moving out is $1000. Under the law, with a 20% increase for a "vacancy lease," the rent for the next tenant should be $1200 for a two-year term. But instead, the landlord leases the unit to a friend or family member for $1500.00, who in turn subleases it to you at that amount.
You may think you got a decent deal, but in reality you are overpaying by $500.00 per month on that apartment. Some subtenants maintain an arrangement like this one for years, without ever realizing they're being cheated.
Fortunately, the law is on your side and attorney Jeff McAdams has extensive experience in applying legal remedies for renters caught in the illusory tenancy net. Here's what it's possible to obtain if you win your case:
- You may not only be entitled to get back all the money you overpaid, but also damages…
- The damages can be up to three times the amount of the overcharge. So you can see how a financial recovery in an illusory tenancy case can be substantial.
- You might also get to stay in the unit as a s rent-stabilized tenant going forward.
Your first step is to secure a certified rent history printout, which you can get at Homes and Community Renewal (formerly known as the Division of Housing and Community Renewal). HCR has several New York City offices. If you find gaps or large jumps in the rental rate when you examine the apartment's rent history, call McAdams Law immediately for a free brief initial phone consultation. You may have an illusory tenancy case.
There are strict guidelines for subletting a rent-stabilized apartment in New York City. If you do not abide by them, you may end up losing your apartment. Landlords frequently take every opportunity to claim lease violations and evict tenants in regulated units.
Generally, the landlord cannot withhold consent to sublet unreasonably. However, you must still conform to certain legal requirements