Subletting—also known as subleasing—happens when a current tenant rents out their apartment to another person, who in turn becomes their subtenant. New York is very tenant-friendly when it comes to subletting. State laws give most tenants the legal right to sublet their apartments, even if their lease bans subleasing. That said, there are still strict rules to follow for tenants interested in finding a subletter.
Most New York renters have the legal right to sublet
The majority of New Yorkers have the legal right to sublease their apartment.1 Even if a tenant signed a lease that bans subletting, that clause is illegal and unenforceable. This right applies to tenants who live in a building with four or more rental units. New Yorkers who rent single-family homes or apartments in buildings with less than four units have no automatic right to sublet. Whether or not it’s allowed depends on the terms of their lease.
Tenants can only sublet if they plan to return to the unit
Subletting, according to New York law, means temporarily renting out an apartment. To sublet legally, a tenant must intend to return to their rental unit eventually. A tenant who wants to move out for good and find a replacement tenant is actually “assigning” the lease, not subletting.1 An entirely different set of rules applies to assignments—this article focuses specifically on subleasing.
Tenants must follow a specific process to sublet
To take advantage of their right to sublet, tenants in New York have to follow a strict process laid out by the law. First, they must formally ask permission to sublet from their landlord. This request must be made in writing and sent to the landlord by certified mail, with return receipt requested. The tenant must include the following information in the request:
- The start and end date of the sublet
- The name of the proposed subtenant
- The business and permanent home address of the proposed subtenant
- The tenant's reason for subletting
- The tenant's address for the term of the sublease
- The written consent of any cotenant or guarantor of the lease
A copy of the proposed sublease signed by the tenant and subtenant, with the original lease attached
Once a tenant sends this request, the landlord has 10 days to request any additional information. But this request can’t be “unduly burdensome”—meaning that the landlord can’t try to drown the tenant and subtenant in paperwork (although they could ask to see pay stubs or tax records).
Within 30 days of either the tenant’s initial written request or the landlord’s request for more information—whichever is later—the landlord must reply in writing. If the landlord has denied the request, they must explain why (more on that below).
If the landlord doesn’t respond at all within 30 days, their silence is considered consent, and the tenant may move forward with the sublease.
A landlord’s denial of a potential subletter must be “reasonable”
As noted above, any denial by a landlord must be “reasonable.” According to New York courts, a reasonable rejection must be based on specific factors that reflect on a subtenant’s suitability. It can’t be based simply on a landlord’s whims or preferences.2 In practice, this means that a landlord’s objections must almost always be economic in nature—that the subtenant can’t afford the rent, for instance. Even this objection, though, could potentially be challenged. Since the original tenant remains on the hook for all the lease obligations, the subtenant’s finances are less relevant.
However, a landlord may legitimately deny a sublease if there’s evidence that the tenant has no intention of moving back into the apartment (making it an assignment, not a sublease).3 For example, if the proposed sublease lasts for the entirety of the tenant’s remaining lease, the landlord could deny the sublease on the grounds that it is actually an assignment.
There are additional rules for subletting subsidized or regulated housing
For New York tenants who want to sublet—but who also live in rent-regulated or rent-stabilized units—there are even more rules:4
- Tenants can only upcharge their subtenants if the unit comes furnished—and even then, only by a maximum of 10%. This is a serious rule. Tenants who violate it can be sued for triple the amount of money they illegally overcharged their subtenants, along with legal fees.
- Tenants can only sublease their unit for a maximum of two out of the last four years. For example: if a tenant proposes a new one-year sublease for all or 2020—but previously sublet their apartment for 13 months starting in 2018—they would be in violation. The goal of this law is to make sure that tenants can’t hoard rent-stabilized apartments and use them as permanent sublets.
- Tenants in NYCHA public housing, or who receive Section 8 rental subsidies, can’t sublease their apartments under any circumstances.5
Tenants are still responsible for rent while subletting
Any tenant who wants to sublet should be very clear about one thing: the original tenant remains on the hook for rent until their lease expires.6 If a subletter stops paying the tenant, the tenant has no excuse to stop paying the landlord. The landlord can even sue the tenant for unpaid rent or for eviction (although the landlord also has the option of suing the subtenant for rent, if they’d like). But the point still stands: tenants need to make sure subtenants pay and respect the terms of the original lease.
It’s recommended that tenants and subtenants sign a written sublease that clearly lays out the terms of the agreement. A tenant can sue (or evict) a subtenant on the basis of such an agreement, if necessary.
The information provided on this website does not, and is not intended to, constitute legal advice.