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Subletting your apartment may be your right

Changes come all the time in life, and you never know when you’ll need to be away for a long time. It may be a temporary job, care for a family member or some other change you didn’t anticipate. If you want to come back to the same apartment when it is finished, you have to keep your lease.

Even if your lease says that you are not allowed to sublet, you may have the right to do so. It is not legal to prevent a sublease under New York law except under very specific circumstances. If you have a market-rate or rent-stabilized apartment that you need to sublet, it very likely can be done – you simply must go through the right procedures to make it happen.

The law on subletting

In general, once you have a lease on an apartment, you can sublet at any time without violating the lease. There are specific restrictions, however, and a few situations where it can be prohibited. These include:

  • Public Housing such as Section 8 or HUD units
  • Non-profit buildings and co-ops
  • Rent-controlled units (unless their current or prior lease has a clause allowing them to sublet)

If you have a market-rate lease, rent-stabilized lease or other lease not described in the above situations, you may be able to sublet. The landlord does have to approve, however, so there are many ways the process can become complex. It is important to be very sure of your own situation and how the sublet will be arranged before asking. And if you are stabilized, the most you can sublet is two years out of any four-year period. In addition, if the apartment is stabilized, you cannot charge more than what you are paying, unless the apartment is fully furnished, in which case you can charge 10 percent above your rent.

Getting approval from your landlord

Your landlord has to approve the sublease just as you were approved for your lease. This can include a background and credit check on your subtenant. The landlord cannot, however, use your request as an excuse to delve into your finances. They can also require a valid reason why you are going away before approving the sublease, since the law provides that the landlord cannot “unreasonably” refuse consent.

There is a useful guide to this published by the Metropolitan Council on Housing which outlines the required procedure for notifying your landlord of your intention to sublet. You have to follow a specific legal procedure if you want your request granted. This procedure is set forth in Section 226-b of the NY Real Property Law.

If your landlord does not want you to sublet, however, they may come up with any number of excuses as to why your proposed tenant has been rejected. But they do have to offer a valid reason and not reject the sublease outright. If you believe that the landlord has unreasonably refused consent, you can proceed with the sublease. The landlord can then initiate a court case claiming that you are illegally subletting, which you can defend by showing that you followed the proper procedures and the landlord’s refusal to consent was unreasonable. You might even be awarded reimbursement of your attorney’s fees if you win the case.

Demand your rights

It is recommended that you retain a knowledgeable attorney in requesting a sublet. If you proceed on your own and think that your landlord is not acting in good faith, or has not offered you a reason for rejecting your sublease, you may want to speak with a lawyer. It is important to have a tenants' rights attorney on your side when they are refusing to let you sublet your apartment.

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