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New York City’s housing laws can often be complex, confusing, and mysterious. One of the most challenging things to understand is the rules on subleasing. Landlords often make it difficult to sublet your apartment, but you almost always have the right to try.
Below, we look at some legal nuances of subletting and what you need to know before looking for someone to sublease your apartment.
What is a Sublease Agreement?What is a Sublease Agreement?
A sublease agreement is a legal document that allows a tenant to transfer ownership of their lease (known as the master lease) to another party. They’re typically used when a roommate wishes to vacate their residential lease agreement before the other or when one tenant wants to leave on an extended trip but doesn’t wish to break their lease agreement. The terms of the sublease agreement will be exactly those of the original master lease.
Who Can Sublease an Apartment?Who Can Sublease an Apartment?
According to New York State law, most tenants have the legal right to sublease their apartments. This is true even when the lease explicitly says that subleasing is not allowed. Even so, tenants still need formal permission from their landlords. You can do this by submitting a letter to your landlord in which you outline the terms of the sublease, provide information on the proposed subtenant, and any other details about the arrangement. The landlord then has ten days to request further information on the sublease and 30 days to approve or reject the request.
If the landlord rejects the request, they must provide a reasonable explanation. For instance, the subtenant is unemployed, has bad credit, or has a criminal record. But if they can’t provide a reasonable explanation for the rejection or don’t respond to your request after the 30 days are up, this is legally viewed as approval.
That said, there are still exceptions. Anyone who lives in public or subsidized housing (like Section 8) may be restricted against subletting depending on the rules of the individual program. Subleasing in condos and co-ops is also restricted due to exclusive bylaws, which state that subleasing is not a legally protected right. Rent-stabilized apartments can be subleased, but only so long as the subtenant is not charged more than the original tenant. The only exception is the 10% surcharge for subletting a furnished apartment.
There are also laws against subletting in buildings with a minimum of four units for less than 30 days. This is illegal and can lead to fines of up to $7,500. However, you can rent out a room within your unit so long as you plan to be there the entire time to supervise your guest. Just know that this is not considered subletting, and you will still need to work out an agreement with your landlord before you can list the property on Airbnb.
What is Included in a Sublease Agreement?What is Included in a Sublease Agreement?
If you wish to improve the likelihood that your landlord will accept your subletting request, you need to make your sublease agreement as detailed and all-inclusive as possible. Getting this right can save you a lot of legal trouble down the road, so make sure you include, at a minimum, the following:
- Cost of the monthly rent
- Who will be responsible for home repairs and maintenance
- The length of the sublease agreement
- Liability information
- Guest policy
- Security deposit
- Lead-based paint disclosure
- Terms of the original residential lease
- Smoking policy
- Landlord permission
- Signatures of all parties involved
What are the Risks of Sublease Agreements?What are the Risks of Sublease Agreements?
Sublease agreements can offer much flexibility for tenants, subtenants, and landlords. However, they’re not without risks for all parties involved in the agreement. For a start, there’s the matter of rent collection. In some agreements, the subtenant provides their rental payments to the original tenant, who must then pass them on to the landlord. But if the original tenant withholds the subtenant’s rental payments, the subtenant can be evicted despite having made their payments on time. That said, it’s more common to see sublease agreements where the original tenant is fully liable for unpaid rents or property damage by the subtenant.
Since the original tenant is still responsible and liable to the landlord for all terms agreed to in the original lease, being unable to deliver clear and free possession of the property at the end of the lease may result in a holdover proceeding being filed against you and the subtenant. Another risk is that the subtenant might refuse to vacate the property after the sublease has expired. This may put you, the original tenant, on the hook for any unpaid rents or legal fees, even though it was the subtenant that caused all the drama. The one silver lining in this is that so long as you put enough effort into drafting a valid sublease, you will be entitled to sue the subtenant for the reimbursement of all those fees.
You can also run into problems with the subtenant’s security deposit if you don’t handle it appropriately. To avoid issues, keep the subtenant’s security deposit in a separate New York Interest-bearing bank account to track the interest. Any time you need to use part of the deposit to cover property damage, ensure you provide a record of any transactions to both your landlord and the subtenant. Your landlord must do this in buildings with six or more units.
Final ThoughtsFinal Thoughts
Anyone planning to sublease their apartment should seek approval from their landlord and ensure that all parties sign the sublease agreement. In case of any disputes, the agreement should protect all parties, provided it has been drafted correctly. In cases where you are unsure about your ability to sublease, seek legal consultation from a qualified real estate attorney.