It's a known fact that renting an apartment in New York City is one of the most stressful situations you'll ever willingly put yourself in. Get this: Subletting an apartment in New York City is even worse. Whereas renting the regular way is fairly official (even as you're haggling over the broker's fee), subletting feels really loosey-goosey and out of your control. You're at the mercy of this random person whose lease you want to take over. But the reality is, subletting seems so scary because you're not armed with the right info. It's a perfectly safe, valid way to snag an apartment—as long as you know what's up. We turned to Luise Barrack, managing member of Rosenberg & Estis, P.C., a real-estate law firm in New York City, to find out everything you need to know about subletting in NYC. Here she answers our most pressing questions.
P.S. Laws differ from city to city, so make sure you do your research. However, it's pretty much guaranteed you'll have to keep the landlord in the loop no matter where you live.
If you want to sublet someone else's apartment . . .
Q: Is subletting even allowed?
A: It depends.
"A lot of people are panicky about it because they think they can do it but they can’t," says Luise. To put it simply, you can't move into someone else's apartment just because you and that person are OK with it. If the apartment is in a building with four or more units, the landlord has to give his or her consent for it be legal—no ifs, ands, or buts. "If you don’t get consent, you may be at risk. You may move in and find yourself in litigation. That's assuming you can move in."
Q: Will I have the same rights as any tenant?
A: Check the sublease agreement.
You sign a lease when you rent an apartment the regular way. You sign a sublease when you're subletting. That sub-lease is where you'll find all the details on what you do and don't have rights to as the tenant, says Luise. One thing's for sure: The landlord is obligated to ensure the appliances work and that the heat and hot water is operational, as with any rental apartment. "If the paint is peeling or not in good condition, the owner has to take care of it," says Luise. Plus, "any owner of any building that’s at least a two-family building has the obligation to paint every three years."
Q: What's the process for moving in?
A: The previous tenant will be your best friend.
If this were a typical rental situation, the broker would hand over the keys and connect you with the landlord and superintendent for further info. That's not the case when you're subletting. Speak directly with the current tenant to work out all of those things. "Your arrangement is with the tenant," Luise explains, not the landlord.
Q: How do I protect myself legally?
A: Document everything.
"You want to know what your responsibilities are," says Luise. "Make sure you know the condition of things when you move in." Ask to do a walkthrough and take photos of any problems that exist already. On top of that, did the old tenant leave furniture or other items that you're meant to take care of? "It’s a question of transparency. Take photos if the apartment has property in it. Have a list of the property that is in there."
If want to sublet your own apartment . . .
Q: How do I go about asking my landlord for permission to sublet my place?
A: Get out your pen and paper.
OK, fine, a printed-out letter with a certified mail receipt will work, too. "You're supposed to send a written request and there's a certain way you have to send it," says Luise. "In New York, there's a very specific statute that deals with subletting: 226B. It tells you that you have to send the request with the term, the name, and where you're going to be during the proposed sublease. You have to give some detail of what this is all about. The owner has the right within ten days to ask for additional information. They can't ask for burdensome information, but they could certainly say, if you are moving to Colorado for a year, are you buying a place? Do you have a letter from your employer saying you're relocating for a year and returning to New York City?" According to the NYC Rent Guidelines Board, if your landlord is radio silent after 30 days, "then a failure to respond is deemed consent."
Q: Can I charge more for rent than I'm currently paying?
"The rent that the sublessee [Editor's note: the sublessee is the incoming tenant] is paying cannot exceed what the tenant pays except if the apartment is being rented furnished," says Luise. "You can't just charge any amount of money that you think the apartment is worth."