Do I have a right to sublet my apartment?
According to New York State law, most tenants have the legal right to sublet their apartment. However, you still have to ask your landlord for permission to sublet your apartment. The first thing you should do is to notify your landlord of your desire to sublet as they will likely have a procedure in place. In the event they don't the more formal process set in place by NY State requires that you send a written request via certified mail, with return receipt requested directly to your landlord. Included in your written request should be all the information about your proposed subtenant, and any other details about the arrangement including:
- The length of the sublease;
- The name and address of the subtenant;
- Your reason for requesting a sublease;
- The amount of rent your subtenant will pay you;
- An outline of the security deposit agreement you and your subtenant have negotiated; and
- A copy of the proposed sublease agreement.
Should your landlord deny your request, state laws require him/her to provide you with a reasonable explanation for why your sublet request was rejected (e.g., your proposed sublet has poor credit or not enough income). Your landlord only has 30 days to approve or deny your proposed sublet. If the landlord does not respond, that is viewed as an approval.
Who can’t sublet their apartments?
Unless you fall into one of the following categories, you probably have the right to sublet your apartment.
- Public housing residents & Rent Subsidies: HUD and Section 8 tenants do not have the right to sublet. Additionally, tenants who receive rent subsidies (i.e., FEPS, SCRIE or DRIE, etc.) generally don’t have the right to sublet either.
- Non-profit buildings: Under program guideline, tenants in non-profit housing may be prohibited from subletting,
- Co-ops: Tenants in coop (and condo) apartments must check their building’s by-laws and their proprietary lease to ascertain whether they have a right to sublet their apartments. The only exception to this rule is if you are a rent stabilized and rent controlled tenant who resides in a co-op building, then as a rent-regulated tenant, you still retain your right to sublet, regardless of the coop’s or condo’s By-laws.
- Rent controlled: These tenants cannot sublet their apartments unless they have a prior lease containing a clause that permits them to sublet.
What are the requirements if I’m a rent-stabilized tenant?
As a rent stabilized tenant, you have additional rules to follow:
There is a limit on how much you can charge. You can only charge your legal rent to the subletter, that is unless you are subletting a furnished apartment. In that event, you can charge a 10% surcharge. If you overcharge your subtenant, they can sue you for the overcharge amount as well as for treble damages.
The apartment must be your primary residence. Although you are subletting, the apartment must still be your primary residence. In other words, you must intend to return to your apartment after the sublease ends. If for any reason you fail to maintain the apartment as your primary residence during the duration of your sublease, you risk your landlord commencing a nonprimary residence holdover proceeding. (i.e., a housing court proceeding, where the landlord will try to evict you from your apartment because it is not your primary residence).
You can only sublet for two years. The rent-stabilization law limits your sublet to two years, including the term of the proposed sublease, out of the four years preceding the termination date of the proposed sublease.
Subletters can’t automatically take over a lease
No provision allows subletters to automatically take over your apartment and lease if the tenant of record decides to move out. Basically, the landlord has to approve any transfers or new leases.
Can I list my apartment on Airbnb?
The short answer is no unless you are offering the sublet for a minimum of 30 consecutive days. The use of the Multiple Dwelling Buildings for short stay rentals and/or transient use violates §4.8a of the New York State Multiple Dwelling Law, §27-2004.a.8(a) of the New York City Housing Maintenance Code, and §310.1.2 of the New York City Building Code.
Specifically, New York State’s 2011 multiple dwelling laws make short term rentals of less than 30 days illegal in Class A buildings. Therefore, by law, renting your apartment for less than 30 days is not considered a sublet in New York City, and it’s illegal. If you are caught renting your apartment for less than 30 days, you could be fined up to $7,500.
Additionally, if you are caught renting out a rent-regulated apartment on Airbnb, you can also be evicted by your landlord for profiteering on a rent-regulated apartment as well as illegally using your apartment.
Can I rent out a room within my unit on Airbnb?
If you want to rent out a room within your apartment and you will be living in the apartment the entire time -- the Airbnb laws do not control this arrangement. If done correctly, you can generally rent out a room in your apartment on Airbnb. The key point here is that you would still inhabit the apartment.