This booklet is designed as a guide to highlight some of the principal rights of residential tenants in this state. These rights are protected by a variety of State and local laws. In addition, those areas of the State which are subject to rent stabilization, rent control or other rent regulation, may have special rules applicable to certain dwellings. For example, rent stabilization laws apply in New York City and in certain communities in Nassau, Rockland and Westchester counties. Tenants are advised to consult a lawyer regarding particular situations of concern to them.
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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.
A 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 sublet:
- 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).
It 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.
When 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 residence.
A tenant 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.
SENIOR CITIZEN LEASE TERMINATIONS
Tenants 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.
In 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).
LEASE TERMINATIONS FOR MILITARY PERSONNEL
Individuals 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.
LEASE TERMINATIONS 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.
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