You have the right to sublet in New York if you are a tenant in a building with four or more rental units, excluding municipal housing and co-ops. It's one of only two jurisdictions in the U.S. where you can go ahead and sublet your place even if your landlord ignores you or refuses you (as long as they aren't refusing you for a good reason).
This right is stated clearly in New York Real Property Law 226-B. Here's the relevant line:
A tenant renting a residence pursuant to an existing lease in a dwelling having four or more residential units shall have the right to sublease his premises subject to the written consent of the landlord in advance of the subletting. Such consent shall not be unreasonably withheld.
If your lease, a rider to your lease, or your landlord says that subletting is not allowed then it is incorrect. The law states clearly that any term in a lease which prohibits subletting is null and void.
Common Lease Terms in New York
Most leases in New York include a clause on assigning, subletting or abandoning property. It says that you must get landlord approval to sublet and rarely mentions the part of the law that requires landlords to provide consent unless they have a reasonable reason for doing so. The Real Estate Board of New York includes this language:
Here is the term you can expect to find in a New York lease:
The first and every other time you wish to sublet the Apartment, You must get the written consent of Owner unless Owner unreasonably withholds consent following your request to sublet in the manner provided by Real Property Law § 226- b. Owner may impose a reasonable credit check fee on You in connection with an application to assign or sublet.
Here is the full legal guidance:
- Consent shall not be unreasonably withheld...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.*
A landlord in New York is required to list reasons for not allowing you to sublet that would be proven reasonable in a court of law, and if they don't do this then you can interpret that as consent.
Subletting a Rent-Stabilized Apartment in New York
Tenants living in rent stabilized units in New York still enjoy the right to sublease. They are subject to a few extra rules that come from the Department of Homes and Community Renewal's rent stabilization regulations, section 2525.6. Here's what you need to know:
- You must maintain the apartment as your primary residence. For example, if you wish to sublet while you take a temporary job assignment, or you are in the military service or college, or you expect to spend four months wintering in Florida, you are still considered a primary resident.
- Your landlord can tack an additional 10% onto the monthly rent. This is called a "sublet allowance.” The most up-to-date allowances for rent increases can be found in this chart published by the New York Rent Guidelines Board.
- You can tack an additional 10% onto the monthly rent if your place is furnished
- In total your monthly rent during the sublease can increase by no more than the 20% described above.
Still confused? As an example, let's say your monthly rent is $2000. Your subtenant can pay you a maximum of $2400. Unlike with a market-rate apartment in New York where you can increase the rent during the sublet by however much you want, it's illegal to charge any more than $2400 in monthly rent.
If your subtenant finds out they can file a complaint that would require you, the primary tenant, to pay them three times the overcharge.
Sublet versus Assign in New York
New York law states clearly that for a sublet to be legal the resident must plan on returning to the residence. If there is a chance that you will be returning then you may wish to sublet your room or apartment. If you have already made it clear to your landlord that you're gone for good then you will have no other choice but to assign your lease.
Find out more about subletting in New York:
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