外文翻译
原文
Subletting in New York Law
By Gerald Lebovits
I. Introduction
Residential tenants are permitted to sublease an Apartmentif they follow the procedures
outlined in New York Real Property Law (RPL)§226-b, frequently referred to as New York 's “Sublet Law.” This article explores the common illegal sublet scenarios, the steps a landlord must follow to commence an alleged illegal-sub- let holdover proceeding, the holdover proceeding itself along with motion practice and disclosure, and a tenant 's opportunity to cure an illegal sublet.
A sublease is “a lease by a lessee to a third party, conveying some or all of the leased
property for a shorter term than that of the lessee, who retains a reversion in the lease.” In a sublease, the tenant is the “prime tenant” and the sublessee is the“subtenant” for the duration of the sublease. The main characteristic of a sublease is that the tenant conveys less than the entire interest in the property and retains either a reversionary interest in the whole property or a possessory interest in part of the property. The prime tenant conveys the rights to occupy and enjoy the rental unit for the sublease term and regains possession when the term ends.
Sublets are different from assignments. An assignment is “the transfer of rights or
property.” The main characteristic of an assignment in this context is that the tenant conveys his entire interest in the property, either possessory or reversionary, and retains nothing. An assignment may or may not be coupled with a release of the original tenant from all obligations under the original lease, depending on the original lease's provisions
Courts distinguish between roommates and subtenants. When the prime tenant shows
that an occupant is merely a roommate and not a subtenant in possession of the rental unit for a specified duration, the landlord cannot maintain a cause of action premised on an illegal sublet.
In the past, rent-regulated tenants were allowed to sublet or assign a rental unit without
limitation. Today, that view is contrary to public policy and void as illegal. Rent regulation is not served by lenient alienability.
A tenant's right to sublet is governed by RPL§226-b and, when applicable, New York's
Rent Stabilization Code§2525.6， but the parties may affirmatively agree to expand a tenant's right to sublet. Examples of affirmative agreements include a lease provision or a stipulation of the parties permitting the tenant to sublet at will. When a tenant's lease is silent about the right to sublet or assign, the silence may not be construed as conferring greater rights on the tenant than those a statute affords.
The following are the most common illegal-sublet scenarios. First, a tenant may sublet a
rental unit without complying with relevant statutory provisions like RPL§ 226-b. Second, a tenant may choose to sublease a rental unit without asking for the landlord's consent. Third, a tenant may ask for the landlord's consent and then sublease the unit, even though the landlord had withheld consent. Fourth, a tenant may sublet without meeting a primary-residence requirement. Fifth, a tenant may attempt to sublet continuously, called“piggybacking.” II. Common Illegal Sublet Scenarios
If a lease or a regulation requires it, tenants must obtain the landlord's consent before
they sublet an apartment. Once a tenant informs the landlord of the proposed sublease, the landlord may not withhold consent unreasonably. RPL§226-b gives tenants who have an“existing lease in a dwelling having four or more residential units” he right to sublease an apartment after a tenant has obtained the landlord's written consent. The Sublet Law does not protect all tenants. It exempts from its coverage tenants in buildings with fewer than four units; tenants with periodic rental agreements, such as month-to-month tenants; and rent-controlled tenants without current leases, because a current lease governs a tenant's right to sublease.
To obtain consent, a tenant must mail a notice of intent to the landlord by certi? ed mail,
return receipt requested. The notice of intent must include the term of he proposed sublet; the tenant's reason for subletting; he proposed sublessee's name, business address, and permanent home address; and a copy of the proposed. A landlord has several choices once a sublet sublease. request is made. The landlord may choose to accept or reject the sublet request within 30 days of either the mailing of the tenant's request or the mailing of the additional information requested by the landlord, whichever is later. A landlord that does not do so is deemed to consent, and the tenant
may proceed with the proposed sublease. The landlord may also ask for additional information about he sublet within 10 days, or reject the sublet request as defective within 10 days. The landlord may request dditional information from the tenant so long as this request is not unduly burdensome. The landlord that wants to request additional information must do so within 10 days of the tenant's mailing the notice of intent
Because landlords owning rent-regulated units may not unreasonably withhold consent to sublet,case law has interpreted reasonable and unreasonable grounds for rejection,Tenants seeking to sublet their rent-stabilized apartments should be mindful of the various inquiries landlords are permitted to make of prime tenants regarding a proposed sublet despite the unreasonable consent rule being in their favor.
When a tenant alleges that a landlord unreasonably withholds consent to sublet a unit,
courts must determine whether the landlord's actions were unreasonable. Absent this determination, the proposed sublease does not by itself confer any occupancy to a subtenant. This lack of entitlement means that a subtenant has no “peaceable”or “constructive” possession required to maintain an action for possession and treble damages.
Under New York's rent-regulatory scheme, a landlord may not unreasonably withhold
consent to sublet. In a recent case, the court was faced with a landlord who had rejected a prime tenant's sublet request for three reasons: (1) the prime tenant would have been away from the country for the entire proposed sublease term; (2) the proposed subtenant had insufficient means of income or support; and (3) the proposed sublease term would extend beyond the current lease term. The prime tenant had complied with all subletting requirements RPL §226-b. The court held that none of the landlord's reasons constituted a reasonable withholding of consent. The court went on to hold that nothing requires a prime tenant to reside in the same country during the sublease period. The court also found that the proposed subtenant provided proof of sufficient income or support to fund rent and utility obligations. Finally, the court found that New York's Rent Stabilization Code allows a sublease to extend beyond the term of the prime tenant's lease and prohibits withholding consent solely on that ground.
A sublease or an assignment undertaken without the landlord's prior consent is a ground
for eviction,Approval of the New York State Division of Housing and Community Renewal (DHCR) is not required for rent-regulated tenancies. When a landlord reasonably withholds
consent to sublet or assign a rental unit, the tenant has no remedy. A distinction between subleases and assignments arises when a landlord unreasonably withholds consent. If a landlord unreasonably withholds consent to assign an apartment, a tenant's remedy is to request to be released from the lease; the landlord must comply with this request within 30 days' notice. In contrast, a landlord may not unreasonably withhold consent to sublet.
A rent-stabilized tenant must comply with the requirements in RPL !ì 226-b as well as
with the primary-residence requirement. The tenant's housing accommodation must be maintained as a primary residence at all times, and the tenant must intend to occupy the unit as a primary residence at the termination of the sublease. An agreement to sublease may still be illegal even if the tenant maintains the housing accommodation as a primary residence. For example, when a tenant is permitted to have a roommate who contributes to rent payments, a tenant may not reconfigure and rent separate parts of the apartment. An illegal sublease also arises when the prime tenant conveys an interest in the roommate's space but retains an interest in the remainder of the apartment.
When a prime tenant illegally sublets a rental unit to an immediate family member long
connected to the apartment, the proper remedy is a nonprimary-residence claim, not an illegal-sublet claim. Although proof of a prime tenant's violation of the nonprimary-residence rule alone is insufficient in an illegal-sublet holdover, courts permit landlords to maintain illegal sublet proceedings against family members who have no long-term connection with the apartment.
A landlord has the option of bringing either a nonprimary-residence claim or an illegal
sublet claim. Under the Omnibus Housing Act, the right to sublet requires a tenant currently to reside, and intend to return, as the rental unit's primary resident when the proposed sublease term expires. But differences exist between a nonprimary-residence claim and an illegal sublet claim, including the items of proof necessary to support each claim and the availability of a tenant's right to cure.
Tenants subject to New York's Sublet Law are prohibited from continuously subletting
an apartment. A rent-stabilized tenant is limited to subletting an apartment for a maximum of two years, including the term of the proposed sublease, out of the four years preceding the proposed sublease's termination date Violating this \sublet.
To evict a rent-stabilized tenant, the landlord must first serve the tenant with a written
notice to cure providing at least 10 days for the tenant to cure the wrongful acts or omissions. This procedure also applies to loft tenants. A landlord that gives a tenant an inadequate time to cure is unable to maintain a summary proceeding for an illegal sublet. The requirement to serve the tenant with a notice to cure does not apply if the violation is continuous or recurrent and the landlord has previously served the tenant with a notice to cure within the last six months; or the violation is a willful breach of an obligation that results in serious and substantial injury to the landlord or the property.
Assuming that the landlord complies with the timing requirements of the notice to cure
and that the tenant fails to cure the violation, the landlord may then serve the tenant with a termination notice requiring the tenant to vacate or surrender, subject to certain timing requirements before the intended termination date. A landlord must serve the tenant at least seven days before the cited surrender date. This termination notice may be combined with the notice to cure, such that the termination period includes the 10-day period specified in the notice to cure.
The notice to cure must state the grounds on which the owner relies for terminating the
tenancy, the facts necessary to establish that ground, and the date by which the tenant is required to surrender possession.
A landlord will not establish a sufficient predicate notice to maintain an eviction
proceeding if the notice of termination \recite[s] the legal ground for the eviction, but fail[s] to set forth any of the facts upon which the ensuing . . . proceeding would be based.\ These requirements ensure that tenants are informed of the legal and factual claims asserted and provides them with the opportunity to \
When a termination notice is deficient because it fails to contain all required information,
the petition might be dismissed. Strict compliance with these statutory provisions is mandated because a summary holdover proceeding is \
At least for rent-stabilized tenants, a landlord must add five days to the combined cure
notice and termination notice if the combined predicate notice is served by mail. If the adequacy of the notice is material, courts will assess the adequacy of the notice in view of its reasonableness and all the attendant circumstances.
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