Illegal Subletting

A tenant is properly subletting when she leaves her apartment to someone else for a temporary period of time not exceeding more than two years. Rent stabilized tenants generally must ask permission from the landlord before subletting an apartment. If they don't, they could risk eviction on a charge of illegal subletting.

Illegal subletting is one of the most common grounds for a housing court holdover proceeding, but the defenses that can be used are diverse (see the rest of the facts sheets on this site).

Landlords frequently accused tenants of illegally subletting when they leave a family member or a significant other in an apartment while the tenant goes off to graduate school or leaves the state for business. However, such a situation is not necessarily illegal subletting. A family member or even a significant other may qualify for succession rights, or may be protected under the roommate law.

If you are going to sublet your rent stabilized apartment, it behooves you to follow the rules to the letter:

Inform the landlord of an intent to sublease by mailing a notice of such intent by certified mail, return receipt requested, no less than 30 days prior to the proposed subletting with:

(a) term of sublease;

(b) name of proposed subtenant;

(c) business and home address of proposed subtenant;

(d) tenant's reason for subletting;

(e) tenant's address for term of sublease;

(f) written consent of any co-tenant or guarantor of the lease;

(g) a copy of the tenant's lease, where available, attached to a copy of the proposed sublease, acknowledged by the tenant and subtenant as being a true copy of the sublease.

Within ten days after the mailing of the request, the owner may ask the tenant for additional information.

Within 30 days after the mailing of the tenant's request to sublet, or of the additional information reasonably asked for by the owner (whichever is later), the owner must send a reply to the tenant consenting to the sublet or indicating the reasons for denial. Failure of the owner to reply to the tenant's request within the required 30 days will be considered consent.

If the owner consents, or does not reply to the request within the appropriate 30 day period, the apartment may be sublet.

If the owner unreasonably withholds consent, the tenant may sublet the apartment and may also recover court costs and attorney's fees spent on finding that the owner acted in bad faith by withholding consent. If the owner reasonably withholds consent, the tenant may not sublet the apartment.

Additional Charges

The landlord can charge a sublet allowance equal to the vacancy allowance in effect at the start of the lease.

If the prime tenant sublets the apartment fully furnished, the prime tenant may charge an additional rent increase for the use of the furniture, of no more than 10 percent.