DHCR FACT SHEET #7
Division of Housing and Community Renewal
SUBLETS, ASSIGNMENTS, AND ILLUSORY TENANCIES
SUBLETS
A tenant who sublets an apartment is the prime tenant. The person
to whom the apartment is sublet is the subtenant. In a sublet
situation, the prime tenant must abide by the rent stabilization
rules that govern the building owner.
An owner may not unreasonably deny a sublet if the tenant follows
these procedures:
1) inform the owner of an intent to sublease by mailing a notice
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;
2) within ten days after mailing 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 the owners
request for additional information (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 30
days, the apartment may be sublet. However, the prime tenant
remains liable for all obligations under the lease. 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 unreasonably withheld consent.
The owner may charge the prime tenant a sublet allowance equal to
the vacancy allowance in effect at the start of the lease, if the
lease is a renewal lease. The prime tenant may pass this sublet
allowance along to the subtenant.
If the prime tenant sublets the apartment fully furnished, the
prime tenant may charge an additional rent increase for the use
of the furniture. This increase may not exceed 10% of the lawful
rent.
The prime tenant cannot demand "key money" or overcharge the
subtenant. If the prime tenant violates this rent stabilization
rule, the subtenant may file a Tenant's Complaint of Rent
Overcharge and/or Excess Security Deposit [DHCR form RA-89]. Rent
overcharges have to be fully refunded to the subtenant, and the
prime tenant may be required to refund three times the
overcharge.
A tenant may not sublet the apartment for more than two years out
of the four-year period before the termination date of the
sublease. For example, a tenant seeks to sublet the apartment for
two years starting January 1, 1989. The sublet would expire
December 31, 1990. If the tenant has already sublet the apartment
for any period of time between January 1, 1987 and December 31,
1988, the tenant would be exceeding the maximum two year sublet
rule. The owner could bring an eviction proceeding against the
prime tenant. The sublease may extend beyond the prime tenant's
lease term. The primary tenant retains the right to the renewal
lease.
ASSIGNMENTS
A tenant can not ASSIGN their lease without written consent of
the owner. Owner's consent may be unconditionally withheld
without cause. However, an owner who unreasonably refuses to
grant permission to assign the lease, must release the tenant
from the lease upon request of the tenant upon 30 days notice. If
the owner reasonably withholds consent, the lease cannot be
assigned and the tenant will not be released from the lease.
A lease assignment conveys to another person all the tenant's
rights to occupy the apartment, whereas a sublet is a temporary
absence by the prime tenant with full intent to return to the
apartment.
ILLUSORY SUBLETS
An illusory sublet occurs when the alleged prime tenant has not
actually been in physical occupancy of the apartment. This type
of case is called an "illusory prime tenancy" because the alleged
prime tenant does not maintain the apartment as a primary
residence and the sublet is intended to evade various
requirements of the Rent Stabilization Law and Code.
The subtenant of an apartment in an illusory sublet situation may
file a Tenants Complaint of Owners Failure to Renew Lease and/or
Failure to Furnish a Copy of a Signed Lease (DHCR form RA-90 with
the NY State Division of Housing and Community Renewal (DHCR). If
the DHCR finds that the complaint is justified, it will deny the
illusory prime tenant the right to a renewal lease and require
the owner of the building to recognize the subtenant as the prime
tenant, entitled to a renewal lease at the lawful stabilized
rent.
In addition, the illusory prime tenant will be legally
responsible to refund all overcharges collected from the
subtenant. If the illusory prime tenant has furniture in the
apartment, DHCR may direct the subtenant to permit the furniture
to be removed. If the subtenant can prove that the building owner
received part or all of the overcharge, the owner will also be
responsible for refunding the rent overcharge.
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DHCR Fact Sheets (series of thirty) are issued by the New York
State Division of Housing and Community Renewal (DHCR) as plain-
english informational publications. For official agency
policies, see DHCR Policy Statements, Advisory Opinions and
Operational Bulletins. Also refer to the Rent Stabilization Code,
the Rent Stabilization Law and various Rent Control Statutes.
Electronic versions of these documents on TenantNet are for
informational purposes only and there is no guarantee they will
be accepted by any court (or even DHCR) as true copies of DHCR
policy. The reader may obtain true copies of these documents from
DHCR.
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Sheets as issued by DHCR; TenantNet makes no
representation the enclosed material is current or will be
applied as written. The reader is advised that DHCR often fails
to properly apply, interpret or enforce housing laws. Since
housing laws are complex and often contradictory, it is
recommended the reader obtain competent legal advice from a
tenant attorney or counseling from a tenant association or
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For more information or assistance, call the DHCR Rent Infoline
at (718) 739-6400, or visit your Borough Rent Office.
Queens Central Office
92-31 Union Hall St. 4th Fl.
Jamaica, NY 11433
(718) 739-6400
Bronx
One Fordham Plaza
Bronx, NY 10458
(718) 563-5678
Brooklyn
250 Schermerhorn St.
3rd Floor
Brooklyn, NY 11201
(718) 780-9246
Lower Manhattan
156 William Street
9th Floor
NY, NY 10038
(212) 240-6011, 6012
South side of 110th St. and below
Upper Manhattan
163 W. 125th St.
5th Floor
NY, NY 10027
(212) 961-8930
North side of 110th St. and above
Staten Island
350 St. Mark's Place
Room 105
Staten island, NY 10301
(718) 816-0277
Nassau County District Rent Office
50 Clinton Street, 6th Floor
Hempstead, NY 11550
(516) 481-9494
Westchester County District Rent Office
55 Church Street, 3rd Floor
White Plains, NY 10601
(914) 948-4434
Rockland County District Rent Office
94-96 North Main St.
Spring Valley, NY 10977
(914) 425-6575
Albany Regional Office
119 Washington Avenue
Albany, NY 12210
(518) 432-0596
Buffalo Regional Office
Ellicot Square Building
295 Main St., Room 438
Buffalo, NY 14203
(716) 856-1382
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