Subletting Your Apartment
So you want to sublet your apartment in New York City, which you have a right to do pursuant to RPL 226(b). But, caution you cannot abuse this right as your landlord can use evidence of even a legal sublet against you in a non primary residence case. But, this should only be a concern were you to use the sublet provision more than once. [This applies only to rent regulated apartments if you are going to sublet.]
The first thing you must do is find a suitable candidate. Usually suitability is demonstrated by a financial statement of the subleasee that he, or she, has the capacity to assume the rent obligation on the sublease.
Caution—The rent must be the same in the sublease as in your lease except that you may charge an extra 10% in the sublease if you leave your furnishings. Independent of this the landlord is entitled to an additional 10% of your lease rent so that as a practical matter if you leave the apartment furnished you will pass along the 10% to the landlord. If you leave the apartment unfurnished you will incur the 10% increase for the term of the sublease out of your own pocket.
Form of sublease
Whereas _____________________ wishes to sublease the apartment _____ at premises _____________________ for a period allowed by law.
[and]
Whereas ___________ intends to return to the apartment by _______________. Now therefore _________________ subleases the apartment to ______________ on the same terms and conditions as set out in the lease, copy of which is here annexed as an exhibit and incorporated herein.
The term of the lease will be from ________________ to ______________ (Note: That you have the right to lease for up to two years in a four-year period so that you can overlap the lease term which can be renewed by the landlord during the sublease.)
The rent on the sublease will be __________________.
This sublease is conditioned upon acceptance by the landlord which acceptance the landlord cannot unreasonably withhold. The sublease can be cancelled by sublessor at any time before the term begins.
Dated: ________________ ___________________ Sublessor
___________________ Sublessee
I. Assuming a good financial position of the sublessee, your most important concern will be to objectively show your intent to return.
II. If you are subleasing because you have to leave the City to take educational courses then get a letter from the school.
III. If you are being temporarily relocated by your employer get a letter from your employer.
IV. If you are going to take care of a sick relative then get a letter from the relative’s doctor.
V. Once the sublease has been signed you will send the following letter to the landlord:
Dear Mr. Landlord:
I have entered into the enclosed sublease pursuant to RPL 226(b).
I also enclose a copy of the proposed sublessee’s financial statement showing that the subleasee has the resources to pay the rent on the sublease.
I also understand that upon the approval of the sublease you will be entitled to an additional 10% for the sublease term.
The reason that I have elected to sublease is ____________________________________________________
___________________________________________________
___________________________________________________
I herewith enclose the letter (or letters) documenting the reason. It is my intention to return to the apartment by ___________________. If I do not hear from you within 15 days of receipt by you of this certified letter, I will assume that you are not objecting to the sublease.
Very truly yours,
_________________________ Your signature
Now you may hear from the landlord. The landlord has a right to send you a questionnaire. However, Courts have informed landlords that the questionnaire must be reasonable and not burdensome. If unreasonable or burdensome you will get relief from the Courts but at this stage it is time to hire a lawyer.
The landlord has the power to object but the landlord does not have the right to unreasonably withhold consent. He must let you know his position within 30 days of your initial request. If your lawyer finds that the landlord cannot demonstrate an objective ground to withhold consent, your lawyer will inform you of your options which are:
VI. You can go forward with the sublet even though your landlord objects which may invoke litigation.
VII. You can initiate litigation in State Supreme Court for a declaratory judgement. If you have to go to Court to force the issue you may be entitled to attorney's fees.
VIII. You may be able to sue your landlord for damages if you loose the sublet.
IX. You can invoke the clause that cancels the sublet.
If your apartment is not regulated
All of the procedures that I have set out can be followed. However, if the landlord unreasonably withholds consent your only practical remedy here is to take the position that under RPL 226(b) in the circumstances you can abbrogate your lease.
The reason why as a practical matter I make this distinction is that you have no way to keep your apartment once your lease would expire. Nor could you possibly sublet to overlap your lease term. Therefore, there is no real teeth in RPL 226(b) for the non regulated tenant.
Caution relating to both regulated and unregulated. RPL 226(b) theoretically, if followed to the letter, contemplates a procedure that can resolve issues within a forty-five day period. But, as a practical matter the earlier you can begin the process the better for all concerned. If it can be done, you may be comfortable starting even six months in advance so that you can be fair to your sublet in terms of options.
There is a question on the table particularly if you suspect your landlord is a "pill" and that is whether you should consider entering into a separate agreement with your candidate in which he or she would assume the costs of any litigation relating to the sublet.
Robert A. Katz
Counsel to Queens League of United Tenants
The first thing you must do is find a suitable candidate. Usually suitability is demonstrated by a financial statement of the subleasee that he, or she, has the capacity to assume the rent obligation on the sublease.
Caution—The rent must be the same in the sublease as in your lease except that you may charge an extra 10% in the sublease if you leave your furnishings. Independent of this the landlord is entitled to an additional 10% of your lease rent so that as a practical matter if you leave the apartment furnished you will pass along the 10% to the landlord. If you leave the apartment unfurnished you will incur the 10% increase for the term of the sublease out of your own pocket.
Form of sublease
Whereas _____________________ wishes to sublease the apartment _____ at premises _____________________ for a period allowed by law.
[and]
Whereas ___________ intends to return to the apartment by _______________. Now therefore _________________ subleases the apartment to ______________ on the same terms and conditions as set out in the lease, copy of which is here annexed as an exhibit and incorporated herein.
The term of the lease will be from ________________ to ______________ (Note: That you have the right to lease for up to two years in a four-year period so that you can overlap the lease term which can be renewed by the landlord during the sublease.)
The rent on the sublease will be __________________.
This sublease is conditioned upon acceptance by the landlord which acceptance the landlord cannot unreasonably withhold. The sublease can be cancelled by sublessor at any time before the term begins.
Dated: ________________ ___________________ Sublessor
___________________ Sublessee
I. Assuming a good financial position of the sublessee, your most important concern will be to objectively show your intent to return.
II. If you are subleasing because you have to leave the City to take educational courses then get a letter from the school.
III. If you are being temporarily relocated by your employer get a letter from your employer.
IV. If you are going to take care of a sick relative then get a letter from the relative’s doctor.
V. Once the sublease has been signed you will send the following letter to the landlord:
Dear Mr. Landlord:
I have entered into the enclosed sublease pursuant to RPL 226(b).
I also enclose a copy of the proposed sublessee’s financial statement showing that the subleasee has the resources to pay the rent on the sublease.
I also understand that upon the approval of the sublease you will be entitled to an additional 10% for the sublease term.
The reason that I have elected to sublease is ____________________________________________________
___________________________________________________
___________________________________________________
I herewith enclose the letter (or letters) documenting the reason. It is my intention to return to the apartment by ___________________. If I do not hear from you within 15 days of receipt by you of this certified letter, I will assume that you are not objecting to the sublease.
Very truly yours,
_________________________ Your signature
Now you may hear from the landlord. The landlord has a right to send you a questionnaire. However, Courts have informed landlords that the questionnaire must be reasonable and not burdensome. If unreasonable or burdensome you will get relief from the Courts but at this stage it is time to hire a lawyer.
The landlord has the power to object but the landlord does not have the right to unreasonably withhold consent. He must let you know his position within 30 days of your initial request. If your lawyer finds that the landlord cannot demonstrate an objective ground to withhold consent, your lawyer will inform you of your options which are:
VI. You can go forward with the sublet even though your landlord objects which may invoke litigation.
VII. You can initiate litigation in State Supreme Court for a declaratory judgement. If you have to go to Court to force the issue you may be entitled to attorney's fees.
VIII. You may be able to sue your landlord for damages if you loose the sublet.
IX. You can invoke the clause that cancels the sublet.
If your apartment is not regulated
All of the procedures that I have set out can be followed. However, if the landlord unreasonably withholds consent your only practical remedy here is to take the position that under RPL 226(b) in the circumstances you can abbrogate your lease.
The reason why as a practical matter I make this distinction is that you have no way to keep your apartment once your lease would expire. Nor could you possibly sublet to overlap your lease term. Therefore, there is no real teeth in RPL 226(b) for the non regulated tenant.
Caution relating to both regulated and unregulated. RPL 226(b) theoretically, if followed to the letter, contemplates a procedure that can resolve issues within a forty-five day period. But, as a practical matter the earlier you can begin the process the better for all concerned. If it can be done, you may be comfortable starting even six months in advance so that you can be fair to your sublet in terms of options.
There is a question on the table particularly if you suspect your landlord is a "pill" and that is whether you should consider entering into a separate agreement with your candidate in which he or she would assume the costs of any litigation relating to the sublet.
Robert A. Katz
Counsel to Queens League of United Tenants
posted by Robert A. Katz at 9:43 AM
