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Can We Keep the Lease of Our Rent-Stabilized Apartment?

Dear Ali:
My husband and I rent a large rent-stabilized apartment on the third floor of a walk-up. I'm about six months pregnant (and we own a dog) so I figure the stairs will present a problem after I give birth. We plan to rent a new apartment in an elevator building, stay in it for less than two years, and then move back to our old place. In the meantime, we'd like my brother-in-law to live in our current apartment, take care of the rent, and hold on to it for us. But the landlord says no. Do we have any legal recourse?

A: Congratulations on the baby -- and I think you can succeed in holding onto your current place, but you may end up taking your landlord to court.

Since you mentioned "rent-stabilization," which is pretty unique to New York City (readers from other places who are curious about "rent control" can skim till the bottom), let me talk about two things here. The first is succession rights. In New York City, there's a provision made to hand rent-stabilized leases over to family members. The classic case is if Mom and Dad live in a rent-stabilized apartment and the kids are born there -- the city doesn't think the kids should be kicked out of their home when Mom and Dad move out.

The definition of "family members" is pretty expansive: it can be, let me quote from the code here, "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 permanent tenant."

There's also a provision for a non-related but interdependent person who has the status of the family member -- for example, a same-sex partner.

However, the point of the regulations is not to pass around rent-stabilized apartments like family heirlooms. Your brother-in-law is your husband's brother, and if your husband is on the lease there's your family relationship. But you also need to get the successor tenant into the apartment while you're still there, and live together for two years. With a new baby on the way, that's not what you want.

The other thing to mention is sublet rights. Rent-stabilized tenants are generally allowed to sublet their apartments for less than two years, if they have the intention of returning to the unit as a primary residence.

To sublet, you need to send your landlord notice in writing. ("Writing" here means send it by certified mail, return receipt requested). According to a flyer from then-State Senator Manfred Ohrenstein's office excerpted on tenant.net, with your request, you need to include:

  • the name of the subtenant;
  • the date the sublease takes effect and the date it
    terminates;
  • the business address and the permanent home address of the
    subtenant;
  • your reason for wanting to sublet;
  • your address for the duration of the sublease;
  • if the prime lease was guaranteed by a third party, the
    written consent of the guarantor;
  • if the apartment is occupied by a co-tenant, the written
    consent of the co-tenant;
  • a copy of the sublease, attached to a copy of the prime
    lease, with a notarized statement signed by you and the
    subtenant attesting that it is a true copy of the sublease.
The info from Senator Ohrenstein continues:
"In stating your reason for wanting to sublet, you must make it
clear that your absence will be temporary and that you intend to
return to the apartment as your primary residence, or the
landlord will have a valid ground to refuse your sublet request."

By those lights, you should be able to get the sublease through as long as your brother-in-law is financially qualified to carry it (note that you're not allowed to make a profit off him) and you're returning within two years.

If your landlord does not object in writing, you have consent. If your landlord does object in writing, though -- and it sounds like yours has, or else said "no" over the phone, and would put that in a letter -- you're going to end up in housing court fighting over your rights.

The good news is that if you can demonstrate that your landlord acted in bad faith in denying you the sublet, you can get reimbursed for court costs.

Starting now, put all -- and I mean ALL -- communication in writing, with dates on it, and keep copies. You never know what the housing court will want to see.

Now, for those of you in other places who have rent-controlled leases, some general rules apply.


Good luck!

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