LEASE SUCCESSION OR TERMINATION
SUBLETTING OR ASSIGNING LEASES
Subletting and assignment are methods of transferring the tenant’s legal interest in an
apartment to another person. To sublet means that the tenant is temporarily leaving the apartment and therefore is transferring
less than the entire interest in the apartment. A tenant who subleases an apartment is called the prime tenant and the person
temporarily renting the premises is called the subtenant. In contrast, to assign means that the tenant is transferring the
entire interest in the apartment lease to someone else and is permanently vacating the premises. A tenant’s right to
assign the lease is much more restricted than the right to sublet. A sublet or assignment which does not comply with the law
may be grounds for eviction.
tenant may not assign the lease without the landlord’s written consent. The landlord may withhold consent without cause.
If the landlord reasonably refuses consent, the tenant cannot assign and is not entitled to be released from the lease. If
the landlord unreasonably refuses consent, the tenant is entitled to be released from the lease within 30 days from the date
the request was given to the landlord. Real Property Law § 226-b(1).
Tenants with leases who live in buildings with four or more apartments have
the right to sublet with the landlord’s advance consent. Any lease provision restricting a tenant’s right to sublease
is void as a matter of public policy. If the landlord consents to the sublet, the tenant remains liable to the landlord for
the obligations of the lease, including all future rent. If the landlord denies the sublet on reasonable grounds, the tenant
cannot sublet and the landlord is not required to release the tenant from the lease. If the landlord denies the sublet on
unreasonable grounds, the tenant may sublet anyway. If a lawsuit results, the tenant may recover court costs and attorney’s
fees if a judge rules that the landlord denied the sublet in bad faith. Real Property Law § 226-b(2).
These steps must be followed by tenants wishing to
- The tenant
must send a written request to the landlord by certified mail, return-receipt requested. The request must contain the following
information: (a) the length of the sublease; (b) the name, home and business address of the proposed subtenant; (c) the reason
for subletting; (d) the tenant’s address during the sublet; (e) the written consent of any co-tenant or guarantor; (f)
a copy of the proposed sublease together with a copy of the tenant’s own lease, if available.
- Within ten days after the mailing of this request, the landlord may ask the
tenant for additional information to help make a decision. Any request for additional information may not be unduly burdensome.
- Within 30 days after the mailing of the tenant’s request
to sublet or the additional information requested by the landlord, whichever is later, the landlord must send the tenant a
notice of consent, or if consent is denied, the reasons for denial. A landlord’s failure to send this written notice
is considered consent to sublet.
Real Property Law § 226-b(2).
In addition to these sublet rules, there are additional requirements limited
to rent stabilized tenants. These rules include the following:
- The rent charged to the subtenant cannot exceed the stabilized rent, plus a
ten percent surcharge payable to the tenant for a furnished sublet. Additionally, the stabilized rent payable to the owner,
effective for the duration of the sublet only, may be increased by a “sublet allowance” equal to the vacancy allowance
then in effect. A subtenant who is overcharged may file a complaint with DHCR or may sue the prime tenant in court to recover
any overcharge plus interest, attorneys’ fees, and treble damages where applicable. 9 NYCRR § 2525.6(e).
- The prime tenant must establish that the apartment has been maintained
as a primary residence at all times, and must demonstrate intent to reoccupy it at the end of the sublet.
- The prime tenant, not the subtenant, retains the rights to a
renewal lease and any rights resulting from a co-op conversion. The term of a sublease may extend beyond the term of the prime
tenant’s lease. The tenant may not sublet for more than two years within any four year period. Real Property Law §
226-b; 9 NYCRR § 2525.6.
- Frequent or
prolonged periods of subletting may be grounds for a landlord to seek possession of rent stabilized premises on the basis
of non-primary residence. 9 NYCRR §2520.6(u).
is unlawful for a landlord to restrict occupancy of an apartment to the named tenant in the lease or to that tenant and immediate
family. When the lease names only one tenant, that tenant may share the apartment with immediate family, one additional occupant
and the occupant’s dependent children, provided that the tenant or the tenant’s spouse occupies the premises as
their primary residence.
the lease names more than one tenant, these tenants may share their apartment with immediate family, and, if one of the tenants
named in the lease moves out, that tenant may be replaced with another occupant and the dependent children of the occupant.
At least one of the tenants named in the lease or that tenant’s spouse must occupy the shared apartment as a primary
must inform the landlords of the name of any occupant within 30 days after the occupant has moved into the apartment or within
30 days of a landlord’s request for this information. If the tenant named in the lease moves out, the remaining occupant
has no right to continue in occupancy without the landlord’s express consent. Landlords may limit the total number of
people living in an apartment to comply with legal overcrowding standards. Real Property Law § 235-f.
LEASE SUCCESSION RIGHTS
Family members living in an apartment not covered by rent control or rent stabilization generally have no
right to succeed a tenant who dies or permanently vacates the premises. The rights of a family member living in a rent controlled
or rent stabilized apartment to succeed a tenant of record who dies or permanently vacates are covered by DHCR Regulations.
Under these regulations, a “family
member” is defined as a husband, wife, son, daughter, stepson, stepdaughter, father, mother, stepfather, stepmother,
brother, sister, grandfather, grandmother, grandson, granddaughter, father-in-law, mother-in-law, son-in-law or daughter-in-law
of the tenant; or any other person residing with the tenant in the apartment as a primary resident who can prove emotional
and financial commitment and interdependence with the tenant. 9 NYCRR § 2520.6(o)(2).
A family member would succeed to the rights of the
tenant of record upon the tenant’s permanent departure or death, provided the family member lived with such a primary
resident either (1) not less than two years (one year in the case of senior citizens and disabled persons), or (2) from the
commencement of the tenancy or the relationship, if the tenancy or relationship was less than two years (or one year, in the
case of senior citizens and disabled tenants.) 9 NYCRR § 2523.5.
The minimum residency requirements will not be considered interrupted by any
period during which the “family member” temporarily relocates because he or she is engaged in active military
service; is enrolled as a full time student; is not living in the residence because of a court order; is engaged in employment
requiring temporary relocation; is hospitalized; or has such other reasonable grounds. In order to ensure that the landlord
is aware of all persons residing in the apartment who may be entitled to succession rights or protection from eviction, a
tenant may wish to submit to the landlord a notice listing all additional occupants. 9 NYCRR § 2523.5(b)(2).
Remaining family members living
in government-financed housing (such as a public development, an apartment owned by the local municipality; or in an apartment
where the prime tenant had Section 8 Rental Assistance) and where the named tenant of record has died or moved out, may also
have the right to succeed to that tenant’s lease and/or rent subsidy.
Family members seeking succession rights in these circumstances must ascertain
the applicable federal and municipal regulations as well as the local public housing authority rules to determine if they
might meet the eligibility requirements. Under federal regulations, persons alleging they are remaining family members of
a tenant family are entitled to a grievance hearing before eviction if they have a colorable claim to such status.
or their spouses living with them, who are 62 years older, or who will attain such age during the term of their leases, are
entitled to terminate their leases if they: (1) are certified by a physician as being no longer able, for medical reasons,
to live independently in such premises and require assistance with instrumental or personal activities of daily living, and
who will move to a residence of a family member, or (2) relocate to an adult care facility, a residential health care facility,
subsidized low-income housing, or other senior citizen housing. Real Property Law §227-a(1).
When such tenants give notice of their opportunity
to move into one of the above facilities, the landlord must release the tenant from liability to pay rent for the balance
of the lease and adjust any payments made in advance.
Senior citizens who wish to avail themselves of this option must do so by written notice to the
landlord. The termination date must be effective no earlier than thirty days after the date on which the next rental payment
(after the notice is delivered) is due. The written notice must include documentation of admission or pending admission to
one of the above mentioned facilities. Real Property Law § 227-a(2).
Anyone who interferes with the tenant’s or the tenant’s spouse’s
removal of personal effects, clothing, furniture or other personal property from the premises to be vacated will be guilty
of a misdemeanor. Real Property Law § 227-a(3).
Owners or lessors of a facility of a unit into which a senior citizen is entitled to move after
terminating a lease, must advise such tenant, in the admission application form, of the tenant’s rights under the law.
Real Property Law §227-a.
all rent controlled apartments, and in rent stabilized apartments outside of New York City, a senior citizen may not be evicted
for purposes of owner occupancy. In New York City, a landlord may evict a senior citizen for this purpose only if the tenant
is provided with an equivalent or superior apartment at the same or lower rent in a nearby area. 9 NYCRR § 2524.4; 9
NYCRR § 2504.4; NYC Admin. Code § 26-408(b)(1).
FOR MILITARY PERSONNEL
entering active duty in the military may terminate residential lease if: (a) the lease was executed by the service member
before entering active duty; and (b) the leased premises have been occupied by the member or the member’s dependents.
Any such lease may be terminated by written notice delivered to the landlord at any time following the beginning of military
service. Termination of a lease requiring monthly payments is not effective until 30 days after the first date on which the
next rent is due. NY Military Law § 310.
FOR VICTIMS OF DOMESTIC VIOLENCE
Effective August 2007, a tenant shielded by a court order of protection is permitted, on ten days’ notice
to the landlord, to seek a court order terminating the lease, and will be released from any further rental payments after
the lease is terminated. The tenant must demonstrate that there continues to be a substantial risk of physical or emotional
harm to the tenant or the tenant’s child from the party covered by the order of protection if the parties remain in
the premises, and that relocation would substantially reduce that risk. The tenant must first attempt to secure the voluntary
consent of the landlord to terminate the lease, and if the request is denied, a court may order termination as long as all
payments due under the lease through the termination date of the lease have been paid. Real Property Law § 227-c.
A tenant with a lease is protected
from eviction during the lease period so long as the tenant does not violate any substantial provision of the lease or any
local housing laws or codes. For both regulated and unregulated apartments, landlords must give formal notice of their intention
to obtain legal possession of the apartment.
Unless the tenant vacates the premises by a specified date, the landlord may commence eviction
proceedings through: (a) a summary non-payment court proceeding to evict a tenant who fails to pay the agreed rent when due
and to recover outstanding rent, or (b) a summary holdover
proceeding for eviction if a tenant significantly violates a substantial obligation under the lease (such as using the premises
for illegal purposes, or committing or permitting a nuisance) or stays beyond the lease term without permission. Real Property
Actions and Proceedings Law (RPAPL) § 711.
Landlords of rent regulated apartments may be required to seek approval from DHCR before commencing
a court proceeding, depending on the grounds for eviction. Where a tenant fails to pay rent, is causing a nuisance, damages
the apartment or building, or commits other wrongful acts, the owner may proceed directly in court. Other grounds, such as
where the owner seeks to demolish the building, require that the owner first receive approval from DHCR.
A tenant can be legally evicted only after the landlord
has brought a court proceeding and has obtained a judgment of possession. A tenant should never ignore legal papers; an eviction
notice can still be sent if a tenant did not appear in court to answer court papers (petition) sent by the landlord.
Only a sheriff, marshal or constable
can carry out a court-ordered warrant to evict a tenant. Landlords may not take the law into their own hands and evict a tenant
by use of force or unlawful means. For example, a landlord cannot use threats of violence, remove a tenant’s possessions,
lock the tenant out of the apartment, or willfully discontinue essential services such as water or heat. When a tenant is
evicted, the landlord may not retain the tenant’s personal belongings or furniture. The landlord must give the tenant
a reasonable amount of time to remove all belongings. RPAPL §749; Real Property Law § 235.
A tenant who is evicted from an apartment in a forcible
or unlawful manner is entitled to recover triple damages in a legal action against the landlord. Landlords in New York City
who use illegal methods to force a tenant to move are also subject to both criminal and civil penalties. Further, the tenant
may be entitled to be restored to occupancy. RPAPL § 853; NYC Admin. Code § 26-523, § 26-521.
Additional rules apply in certain
situations concerning evictions. In New York City, a landlord may not evict a tenant in a rent stabilized apartment for purposes
of owner occupancy if the tenant or the spouse of the tenant is a senior citizen or is disabled, unless the landlord provides
an equivalent or superior apartment at the same or lower rent in a nearby area. In rent controlled apartments statewide and
in rent stabilized apartments outside New York City, a landlord may not evict a senior citizen, a disabled person, or any
person who has been living in the apartment for 20 years or more for purposes of owner occupancy. 9NYCRR § 2524.4; 9
NYCRR § 2504.4; NYC Admin. Code § 26-408(b)(1).
It is wise for tenants to consult an attorney to protect their legal rights if the
landlord seeks possession of their apartment.