Assigning a Lease in New York
A tenant can “assign” the rest of their lease to another person if they need to move out early. In New York, tenants must get their landlord’s permission before assigning a lease.
Most tenants are familiar with the concept of subletting an apartment. Subletting happens when the current tenant leases out some (or all) of their rental unit to a new, temporary renter. "Temporary" is the key term here—according to New York law, a tenant has to plan to return to their apartment before the lease expires in order to sublet. But what if the tenant is moving out for good?
That's where assignments come in. Assigning a lease can be thought of as “permanent subletting.” It’s a way for a tenant to get out of the legal obligations of a lease, without breaking the lease entirely. Tenants who want out of their lease permanently—but can't negotiate a lease break with their landlord—should consider an assignment.
Tenants usually need their landlord’s permission to assign a lease
If a tenant wishes to vacate their apartment entirely, without coming back, the law requires that they “assign” their lease. Essentially, this means transferring the remainder of their lease to another tenant.
Whether or not a tenant has the right to assign their lease depends primarily on their specific lease agreement. Unlike subletting, New Yorkers do not have any explicit legal right to assign a lease.1 But New York law does make it possible for a lease to give a particular tenant complete control over the assignment process. So, if a lease specifically states that a tenant doesn’t need their landlord’s approval to assign, there’s no need to check in with the landlord. However, these sorts of clauses are rare. Instead, leases usually require that tenants obtain landlord permission before assigning a lease.
New York landlords have a lot of control over the assignment process
To start the process, a tenant first needs to ask their landlord if the assignment would be okay. If the landlord consents, they must do so in writing. The landlord is free to consent with certain requirements—for example, they may say that an assignment is only allowed if the original tenant remains on the hook for rent if the new tenant does not pay.2 In New York, many landlords will also seek an “assignment fee” from the tenant trying to assign the lease—this is legal.
Landlord refusals can be “reasonable” or “unreasonable”
Landlords are allowed to “reasonably” refuse an assignment request. A reasonable refusal may include, for example, a landlord rejecting an assignment after requesting more information about the new tenant and not being given that information.3 A refusal to allow assignment to a tenant with no reported income or seeming ability to pay rent may also be considered a reasonable refusal.
However, New York landlords are not allowed to “unreasonably” refuse an assignment request. This usually means a blanket refusal by a landlord to consider assignments, regardless of how qualified the new tenant might be. If a landlord unreasonably refuses an assignment, they must allow the original tenant to break their lease and move out in 30 days.1 So, if a tenant feels the landlord’s refusal has been unreasonable, the tenant should inform the landlord in writing that they are exercising their right to end the lease. After 30 days, the tenant’s rights and duties under the lease are terminated.
A very specific question: if a lease contains “early termination” penalties, do these apply when a tenant breaks a lease early due to an unreasonable refusal to consent to assignment? Unfortunately, there is no clear answer, either in New York statutes or case law. A tenant may take the position that these penalties should not apply—but the landlord could respond by taking them to court to try and enforce the provision.
In a typical assignment, the original tenant can’t be sued for unpaid rent
Assignments are contracts. This means that the parties entering into the assignment (the landlord, old tenant, and new tenant) are free to draft them as they see fit, as long as everyone is in agreement. If everyone agrees the landlord can sue the old tenant for rent if the new tenant doesn’t pay, great—that goes in the assignment.
That said, there are some default rules that apply to assignments (if they haven’t been addressed by the contract itself). By far, the most important thing to understand about assignments is that they transfer all the rights and duties of a lease to a new tenant. If the old tenant suddenly decides they want to move back in, they can’t—the apartment is no longer theirs to live in.
Also critical: in a typical assignment, the old tenant cannot be sued by a landlord if the new tenant does not pay rent.4 This is one of the biggest differences between an assignment and a sublease. This can be modified by the contract (usually if the landlord insists as a condition of allowing the assignment), but it is the “default” rule for assignments.
Public and regulated housing may have different rules for assignment
Tenants in NYCHA public housing, or who receive Section 8 rental subsidies, may not assign their leases under any circumstances.1
Tenants in rent-stabilized and rent-controlled apartments are allowed to assign their leases. An assignment functions the same way a vacancy does for these apartments—if the landlord is allowed to increase rent when a unit is vacant, they may also do so when there is an assignment of the lease. So, it is legal for the new landlord to increase rent for an assigned tenant, as long as the rent-regulated unit is subject to vacancy increase.5
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[2] Carlyle, LLC v Quik Park Beekman II, LLC, Appellate Term, First Department, 2018
[3] Medina v. Brabert Realty, Supreme Court, Special Term, New York CountyJun 4, 1982
[4] Skek Associates v Esther Benenson, Appellate Division, Second Department, 2006
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