George E. Pataki, Governor Joseph H. Holland, Commissioner
A publication of New York State
Division of Housing and Community Renewal
Office of Rent Administration
Fact Sheet #7 - Sublets, Assignments and Illusory Tenancies
[Revised 4/96]
Sublets
A tenant who sublets an apartment to another person 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 of
such intent 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 the mailing of 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 of the additional information reasonably
asked for by the owner (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 the
appropriate 30 day period, 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 acted in bad faith by withholding consent. If the
owner reasonably withholds consent, the tenant may not sublet the apartment.
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 ten percent of the lawful rent.
The prime tenant may not demand key money or overcharge the subtenant. If
the prime tenant overcharges the subtenant, the subtenant may file a
"Tenant's Complaint of Rent Overcharge and/or Excess Security Deposit" (DHCR
Form RA-89). If the New York State Division of Housing and Community Renewal
(DHCR) finds that the prime tenant has overcharged the subtenant, the prime
tenant will be required to refund to the subtenant three times the overcharge.
The sublease may extend beyond the prime tenant's lease term. The prime
tenant retains the right to the renewal lease. 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, 1995. The sublet would expire
December 31, 1996. If the tenant has already sublet the apartment for any
period of time between January 1, 1993 and December 31, 1994, the tenant would
be exceeding the maximum two year sublet rule. The owner could bring an
eviction proceeding against the prime tenant.
Assignments
A lease assignment conveys to another person all the tenant's rights to
occupy the apartment, whereas a sublet is based upon a temporary absence by
the prime tenant who intends to return to the apartment at the end of the
sublease.
A tenant may not assign his/her lease without the written consent of the
owner, which 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 may not be assigned and the
tenant will not be released from the lease.
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
"Tenant's Complaint of Owner's Failure to Renew Lease and/or Failure to
Furnish a Copy of a Signed Lease" (DHCR Form RA -90) with DHCR. If 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 actual tenant, who is 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.
Sublets in Rent Controlled Apartments
The rules regarding sublets in rent controlled apartments are different
from the rules regarding sublets in rent stabilized apartments. Generally, a
rent controlled tenant who is not occupying an apartment pursuant to an
existing lease cannot sublet the apartment without the owner's written
consent. Many rent controlled tenants do not have existing leases.
The specific procedures set forth in this fact sheet for obtaining an
owner's consent to a sublet do not apply to rent controlled apartments. In
rent control, there is no specific limitation as to the amount of time that a
tenant may sublet an apartment. However, the rent controlled tenant must
obtain the owner's written consent to the length of the sublet, and must
continue to maintain the apartment as his or her primary residence.
The Rent Regulation Reform Act of 1993 did not affect the collection of rent
increases for the subletting of a rent controlled apartment, and therefore, no
sublet allowance may be charged by the owner or prime tenant for rent
controlled apartments without the approval of DHCR. This approval is not
required for sublets in rent stabilized apartments.
Under Section 2202.6 of the Rent Control Regulations, an owner may apply to
DHCR for a sublet allowance of ten percent when a prime tenant sublets to a
subtenant. If the increase is granted, the prime tenant may pass it on to a
subtenant.
While the prime tenant may not apply for a sublet allowance if the owner
does not apply, a prime tenant who has rented an unfurnished apartment, which
he/she sublets furnished, may apply for an appropriate rent increase under
Section 2202.4. The amount of the increase, if any, which the prime tenant
will receive will depend on the value and condition of the furniture.
Under these regulations, it is permissible for the prime tenant to pass on
to the subtenant the owner's 10 percent sublet allowance, in addition to the
furniture allowance.
The following forms are to be used for these situations: (1) Owners who
wish to apply for a sublet allowance (Rent Control), should file an "Owner's
Application for Increase of Maximum Rent (Increased Occupancy)" (DHCR Form RA-
33.3). (2) Prime tenants who wish to apply for a furniture allowance (Rent
Control), should file an "Owner's Application for Air Conditioner Charges or
for an Increase in Maximum Rent for Painting" (DHCR Form RN-79b, Part B).
Because DHCR Form RN-79b, Part B, currently does not have a section for
applying for a furniture allowance, a prime tenant should attach to this form
a cover letter explaining that he or she is applying for furniture allowance.
For more information or assistance, call the DHCR Rent InfoLine (718) 739-
6400, or visit your Borough or County Rent Office.
Central
92-31 Union Hall Street
4th Floor
Jamaica, NY 11433
(718) 739-6400
Brooklyn
250 Schermerhorn Street
3rd Floor
Brooklyn, NY 11201
Upper Manhattan
163 W. 125th Street
5th Floor
New York, NY 10027
North side of 110th St. and above
Nassau County
50 Clinton Street
6th Floor
Hempstead, NY 11550
Westchester County
55 Church Street
White Plains, NY 10601
Lower Manhattan
156 William Street
9th Floor
New York, NY 10038
South side of 110th St. and below
Bronx
1 Fordham Plaza
2nd Floor
Bronx, NY 10458
Staten Island
60 Bay Street
7th Floor
Staten Island, NY 10301
Rockland County
94-96 North Main Street
Spring Valley, NY 10977
