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illusory tenancy is a viable defense even if the landlord knows about an illegal sublet

Posted by nyhawk on January 09, 2002 at 23:23:19:

In Reply to: If the LL already knows, you're out of luck. posted by MikeW on January 09, 2002 at 18:18:51:

Also, assuming that this a rent regulated apartment in NYC............The suggestion that "Once the landlord knows about an illegal sublet, and start[s] the paperwork toward an eviction, you're pretty much out of luck" -- is WRONG. The defense of "illusory tenancy" is still available to a subtenant illegally renting a rent regulated apartment in NYC -- even if the landlord is aware of the illegal sublet, so you will get an understanding of the concept. My suggestion is to research "illusory tenancy" on this board because I wrote a message on here explaining the concept in detail a few years back. I would then (promptly) consult with one of the attorney's who advertise on here to get an opinion on the viability of raising illusory tenancy as a defense. (To make your life simple I suggest that you copy this message and give it to the attorney you have a consultation with. It will likely help get the ball rolling because he or she will quickly comprehend my position, instead of you paraphrasing what I said.) I would do all of this ASAP, because the landlord may be gearing up to sue the tenant and you very soon. Seeking the advice from a lawyer, when you have some breathing room, is always much better than seeking the advice from a lawyer when you are faced with a crisis, like the day before you have to been in court (after you have been sued). So do yourself a favor and get pro-active on responding to this dilemma that you unfortunately find yourself in. (You may also decide to stop paying rent to the tenant because he or she may not be actually paying the apartment's rent. That is another reason to see a lawyer (for advice on whether or not to stop paying rent to the tenant) and to do so quickly, long before the next rent is due.)

The comment "that you might be able to use [the illusory tenancy defense] to get the apartment under your name legally, at the regulated rent" is very true. The comment that "I think you need to be in the apartment a substantial amount of time" is also true but not necessarily the determinative factor.
And, finally, let us know the outcome of your problem. Not hearing the outcome of problems that are raised on here does not help us all learn if our suggestions work or not. Good luck...............

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