Subleasing an apartment can seem daunting at times. Many NYC landlords make it difficult to sublet, but you almost always have the right to sublease. We'll explore some of the legal nuances of subletting and walk you through the process of how to sublease your apartment.
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What Is a Sublease Agreement?
A sublease agreement is a legally binding contract between an existing tenant (the "sublessor”) and a new tenant (the “sublessee”), that permits the new tenant to live in and take over all or part of a rental property. A sublease agreement will reference the lease agreement between the existing tenant and the landlord (the “master lease”) and will detail the new tenants responsibilities towards the landlord. In most cases, the landlord will have to approve the sublease.
How to Sublet an Apartment in NYC
The first step to sublet your NYC apartment is to read through your lease. While most lease agreements require that the tenant of record obtain the landlord’s approval before subleasing their apartment, some lease agreements explicitly say that the tenant is not allowed to sublet.
However, according to New York State law, regardless of what your lease may say, most tenants have the legal right to sublet their apartment. Nevertheless, you may still have to ask your landlord for permission to sublet your apartment. If you plan on subleasing your apartment, make sure you’re familiar with the NYC sublet laws.
The formal procedure requires that you send a written request via certified mail, with a return receipt requested. Included in your written request should be all the information about your proposed subtenant, and any other details of the arrangement such as the length of the sublease, and the amount of rent your subtenant will pay.
Pursuant to New York Law, your landlord is required to provide you with a reasonable explanation for denying your request (e.g., your proposed sublet has poor credit or not enough income). Your landlord has 30 days to approve or reject your proposed sublet. If the landlord does not respond, that is legally viewed as an approval.
If you are renting out a condo, a single-family home, or part of a multi-family property, then you do not need board approval to sublease an apartment.
Subletting a Sponsor Unit in a Co-op
Subletting a sponsor-owned apartment is much simpler. Typically, the sponsor (or developer), of a co-op building, will have many exclusive rights when it comes to an apartment that it still owns, including but not limited to not requiring board approval to rent the apartment. While a rental application is still needed, you will still find the process to be much easier than if you were renting a standard co-op apartment. As always, sponsor-owned apartments are still bound to all New York City Rental laws, including the Airbnb laws, which prohibit renting out apartments for less than 30 days.
Subletting a Rent-Regulated Apartment in New York City
When renting out a rent-regulated apartment, you cannot charge your subtenant more than your current rent unless you are subletting a furnished apartment. In that event, you can charge a 10% surcharge. If you overcharge your subtenant, the subtenant can use the law protecting rent-stabilized tenants against overcharges. The subtenant might win damages of three times the overcharge, attorney’s fees, and interest on the overcharge.
Moreover, if you are a sublessee to a rent-regulated apartment, it’s possible you can become a victim of what’s called an “illusory tenancy” perpetrated by the landlord. An illusory tenancy is an illegal tactic used by some greedy landlords, and some tenants, whose primary goal is to receive additional profits on a rent-regulated apartment, by collecting higher than the legal, regulated rent. For example, the legal, regulated rent for an apartment is $1,000.00, but the landlord (or the tenant of record) sublets the apartment to you for $1,800.00. That means that the tenant of record and/or the landlord are receiving an $800 profit off you, illegally.
If you discover that you are a victim of an illusory tenancy scheme, you can sue the landlord and the tenant of record for the overcharge. If successful, you may receive the money that you overpaid back, as well as damages up to three times the overcharge amount, and possibly possession of the apartment with a rent-stabilized lease.
To ascertain whether you are a victim of an illusory tenancy scheme, your first step should be to obtain a certified rent history printout of the apartment in question, which you can get from the Division of Housing and Community Renewal.
Are There Alternatives to Subleasing in NYC?
It depends on the circumstances, but if you don’t plan on taking back possession of your apartment, you can likely look into breaking your lease or assigning your lease. That being said, breaking a lease in NYC can be relatively complicated as you’ll need permission from your landlord, and will also have to find someone willing to take over your existing contract. This is easier said than done as the presumption is that you’ll be competing for prospective renters with your landlord, and marketing the property can take some time and effort.
NYC Sublease Agreement Bottom Line
If you plan on subletting an apartment in NYC, it's best to get approval from the landlord and sign a sublease agreement. This document will protect both parties and make the sublease legal. By getting approval from the owner, you also ensure they are aware of the situation in case any disputes occur.
Sublease Agreement NYC FAQs
If you choose to sublease your apartment, regardless of what is written in your sublease agreement, you are still liable to your landlord for all the terms and conditions under your master lease. That means, if your subtenant does not pay rent for six months, you remain liable to your landlord for all rental arrears, late fees, and legal fees pursuant to the master lease.
As always, the tenant of record is responsible and liable to the landlord for all the terms and conditions under the lease agreement, even if they have a subtenant. As such, if you are unable to deliver clear and free possession of the apartment back to the landlord when the master lease expires, the landlord will more than likely commence a holdover proceeding against you as well as the subtenant for legal possession. The practical implications are that you will probably be responsible for unpaid rent and legal fees because you, not the subtenant, have a lease with the landlord. However, assuming that you have a valid sublease, you would be entitled to sue your subtenant for reimbursement of those fees pursuant to your sublease agreement.