Questions About Subletting

The law for rent regulated tenants allows you to sublet your apartment for two years in each four year period. This is your right by law, regardless whether your lease grants you this: if you are rent stabilized and your lease states otherwise, the law trumps your lease. You have rights, but along with your rights come obligations, it's a two way street: fail to meet your obligations and you may forfeit your rights. It's great that you have a teaching opportunity, but it's time to become a student and get a better education in NYC housing law.

So yes, you have the right to go and teach in China for two years and sublet your apartment, the only problem is that you did not do the sublet via the correct legal procedures, but rather that you attempted to sublet informally. I would suggest contacting a tenant attorney...not an all-purpose attorney but specifically a tenant attorney whose practice is focused primarily on representing tenants in NYC. Call by phone from China and explain the situation and see if you can get a free phone consultation and/or purchase a consultation (usually 45 minutes to one hour where you discuss your situation and get a sense of your options). This can be done via phone and I'm sure payment can be arranged via credit card or other means. You may be able to handle the entire process from where you are in China, casually. OTOH, yo umay need to contract an attorney to assist you and/or you may need to return to NYC...get some sound legal input before you do anything.
It sounds to me like you may have a 'roommate' situation now - that you took on a roommate and that you are just out of the country for a few weeks/months (you haven't been gone a full year yet, have you)? If an opportunity to teach has opened up in China, maybe you can sublet your apartment to your roommate....he would then become the tenant for the duration of the sublet, and that may even mean he can take on one roommate of his own if he so chooses. Of course, you would have to do this LEGALLY, formally, and with the landlord's permission in order to preserve your rights to continued tenancy when the sublet terminates.
If you act foolishly now, you very well may lose your apartment. Do not be penny wise and pound foolish. Get advice and/or representation from a practitioner who is experienced in these issues.
You will need to document in writing many things during this process. This is NOT a matter to be handled informally as you are now doing. You need to document the process in writing so you will have proof in the event you are unreasonably denied the sublet by the landlord and also so that you will retain your tenancy rights after the sublet terminates.

Here is some more info for you and for the edification of those following this thread (sorry for the length but this cuts through much confusion):

http://tenant.net/phpBB2/viewtopic.php?t=4933

"Subletting

Even if your lease forbids it, you have the right under the law to sublease your apartment, and the lease provision is null and void. The subletting procedures below apply generally to tenants renting an apartment pursuant to an existing lease in a building having four or more residential units. The exceptions are tenants in public housing, limited-profit housing, or housing subject to rent control. Rent controlled tenants may, however, sublet if they have a current or prior lease that contains a clause permitting subletting, or if the landlord consents. To sublet, you must closely follow these procedures:

1. Send a letter to the landlord by certified mail, return receipt requested, requesting permission to sublease. (You should retain copies of this correspondence, as well as all other correspondence sent to the landlord.) This letter must contain the following information:

The term (starting and ending dates) of the sublet, not to exceed two years. (If you are uncertain about the term, choose the longer period, because it is difficult to extend the sublet. You can always return early.)

The name of the proposed subtenant. (Choose someone you know if possible. Subleasing to strangers is risky and often full of unhappy surprises.)

The business and permanent home address of the proposed subtenant.

Your reason for subletting (work transfer, school attendance, family crisis, etc). Your reason must reflect an intent to return.

Your address for the term of the sublet.

The written consent of any co-tenant or guarantor of your lease.

A copy of the proposed sublease, to which a copy of your lease is attached, if available.

A separate letter wherein both you and your proposed subtenant state that the attached sublease is a true copy of such sublease. This statement must be signed and notarized.

2. Within 10 days after you mail your initial request, your landlord is allowed to ask for additional information, in order to determine if rejecting your request would be unreasonable. Expect a list of inquiries about the proposed sublessee's resources and rental history.

3. Within 30 days after you mail the initial notice, or after you mail the additional information if requested, your landlord must send you a notice of consent to the sublet, or their reasons for refusal.

If your landlord consents, you may sublease, but you remain liable for future rents.

If your landlord reasonably withholds consent, you can't sublet, and you are not released from the lease and can be held liable for future rents.

If your landlord fails to send a response within the 30 days, this shall be deemed consent to the subletting.

If your landlord unreasonably withholds consent, you may sublet in accordance with the request. If your landlord then tries to evict you, you may recover the costs of any eviction proceedings, together with attorneys' fees, if it is found that your landlord acted in

Posted by: Oxygen at September 10, 2009 2:52 AM

[cont.]

...bad faith by withholding consent.

4. If your apartment is rent stabilized, the following provisions also apply:

You cannot charge your subtenant more than your current rent unless the apartment is furnished during the sublet. In this case, a 10 percent surcharge may be added. The landlord may also collect a vacancy-allowance increase during the term of the sublet. It is rolled back when the prime tenant returns. The increase is the vacancy allowance, if any, provided in the Rent Guidelines Board Order in effect at the beginning of the lease, provided the lease is a renewal lease.

You must establish, and should say so in your initial letter to your landlord, that at all times you will maintain the apartment as your primary residence and intend to reoccupy it at the expiration of the sublease. Primary-residence status requires that during your absence from your apartment, you pay New York City resident income tax, listing the apartment as your residence, and that all records of your residence, including your driver's license, car registration and voting records, reflect the apartment as your home.

You, as the prime tenant, retain the right to a renewal lease, and the rights and status of a "tenant in occupancy" as they relate to conversion to condominium or cooperative ownership.

The law limits your sublet to two years, including the term of the proposed sublease, out of the four-year period preceding the termination date of the proposed sublease. Your landlord may agree to waive this limitation, but the law allows him to refuse. There is no harm in asking. If he says yes, get it in writing.

If your lease expires during the term of the proposed sublease, your subtenant is subject to your renewal lease. The landlord is required to offer and accept a renewal lease from you during the sublet period just as if you were in occupancy.

Should you overcharge your subtenant, he or she shall be entitled to damages of three times the overcharge and may also be awarded attorneys' fees and interest from the date of the overcharge. "

If you have questions, here is a good place to ask them:

http://tenant.net/phpBB2/

Good luck.

Posted by: Oxygen at September 10, 2009 2:58 AM

Instruct the brother of your friend to say nothing if questioned. He can pretend not to speak English. Don't start making up stories. Don't start planning intricate ruses.

Speak with an attorney and find out what you need to due to legitimate a potential sublet or prepare to either forfeit the teaching in China and/or your apartment of 14 years. It will be money well spent. If you try to game the system and trick your landlord, and he has the monetary incentive to get rid of you, as you claim he has, you may just find yourself enmeshed in a lawsuit(s) and having to spend thousands of dollars just to defend your right to continue living in your apartment.

Posted by: Oxygen at September 10, 2009 3:11 AM

As Modsquad hints at, maintaining the apartment as your Primary Residence is important if you wish to keep it, more so if you have a landlord who has an incentive to wants to deregulate it. If you are gone for a year this would be the better method for your LL to evict you.

I suggest also discussing with your attorney what you will need to do to validate your apartment as your primary residence. If you get sued, expect to have your personal data submitted as evidence in court, as per the link above in Modsquad's post. Utility bills/usage are also used to prove a tenant was not living in an apartment during a certain period. FYI, it is also very common for a landlord to video tape their tenants' comings and goings via either an exposed or hidden video camera. My landlord had a video camera the size of a thimble hidden in the lobby, by chance a flash digital photograph of someone's child showed an unusual reflection and that was how it was discovered.

I would advise against notifying your landlord that you now have a roommate. If the LL sends you a request in writing for your roommate's name, then you can consider what you wish to do.

You really need to discuss your situation with a qualified and experienced tenant attorney...DO NOT go to an all-purpose attorney as he will not be familiar enough with these kinds of cases to give you good advice.

Posted by: Oxygen at September 10, 2009 12:04 PM

The OP has a legal right to go abroad and teach temporarily, and to sublet while she is gone. It's that simple.

Due to her ignorance and fear, she didn't cross her i's and dot her t's. It sounds like she merely wants to sublet her place - not rent gouge or profiteer off of a friend or to screw her LL- but unfortunately, due to the unrestrained greed and an often predatory climate propagated by certain, but by no means all LL's, she was fearful of how to proceed and rightfully so. What she has done so far is not set in stone nor is it irrevocable. Also, since no sublease was signed I do not think any court would recognize this as a sublet: it's definition is indeterminate but it sounds to me more like a roommate situation at this stage, although the issue of the amount her roommate is paying is of concern. If it is indeed a roommate, and she is charging him more than half the legal rent, she is in violation of the law and could have eviction proceedings brought against her for rent overcharge.

She needs to follow the law, which is what I am suggesting that she do, or she deserves to suffer the consequences. From her post, I do not think she has a clue how shrewd many landlords are, nor does she seem to have a solid grasp of the monetary value as an asset that her stabilized apt. represents, and the tens/hundreds of thousands of $$ her LL stands to make if he gets her out. If she understood the money clearly, she would understand better the danger of ignoring the law and making herself vulnerable.

Since she seems naive and ignorant, I suggest she seek the advice of an attorney who can advise her what she needs to do. If she takes my advice and follows the law, she can develop her career and broaden her horizons by teaching abroad: the LL will be paid his rent and will be allowed his annual rental increases. No one is cheating anyone and greed does not consume either party. The status quo is maintained. I do not see a federal case here, other than greed, rancor, and fear in the air.

Posted by: Oxygen at September 11, 2009 12:37 AM

Speculation. Might as well speculate if the LL is overcharging the OP. Or, if you are overcharging your tenants. The point is, none of this information is available to us, nor is it productive here.

The OP wanted to sublet her place and was ignorant of what that entailed. Now she has some good info regarding her legal requirements, along with various opinions about her situation. Hopefully now, her actions will result in an equitable and satisfactory outcome for all the principle parties.

Have a good weekend.

Posted by: Oxygen at September 11, 2009 12:42 PM