Most residential leases prohibit subleasing. However, a statute, Real Property Law section 226-b, titted “Right to Sublet”, gives the appearance that despite the lease prohibition you can go ahead and sublet. You would not be faulted if you believed that. Alas, it is not that easy and sometimes acts as a trap to the unaware.
To begin with, the statute goes on for a full two pages of text. Read it. The law has strict time constraints and requirements that must be followed exactly or the effort will fail. A tenant who handed her sublet request to the landlord’s agent instead of mailing it by certified mail, as the statute requires, lost her case. The statute provides for a minimum of forty days for the sublet request to be accepted or rejected by the landlord. Extra days have to be added to this for a response to a written questionnaire from the landlord. If your proposed sublet is scheduled to start too early it can be rejected. There are more twists and turns in the statute that act as traps for the unaware.
The text of the statute is not the only concern. In fact, even if you follow the statute perfectly you don’t know what the courts have said about its interpretation.
Most of the litigation in alleged illegal sublet cases involves the issue of the reasonableness or unreasonableness of the landlord’s refusal to consent to the sublet request. The issue becomes: is the tenant really temporarily away and will return after the sublet ends or is the tenant actually moving away with no intention to return but wants to “hold on to the apartment”. You need to consult an attorney for insight on this issue.
Warning: You can only charge an additional10% above the rent. If you charge more you face eviction for illegally subletting even if you followed the statute and obtained the landlord’s permission to sublet.
