Subletting Woes

Subletting is a hot topic for owners. No one wants a tenant to bring in roommates at will. Indeed, especially where there is a common utility account, more people equates to less rental income and could increase wear and tear in the unit and common areas.

State law prescribes that an apartment’s rent can be raised without limitation when the last original tenant on the lease no longer permanently resides there, provided that the owner had not previously elevated remaining subtenants to original tenancy status by, for example, making them parties to the lease or accepting rent directly from them. As such, many landlords choose simply to ignore subletting except where there is egregious abuse (e.g., overloading the unit), while keeping their eyes on the originals to see when rent can be raised. In addition, two local rent laws permit subleasing under certain circumstances. One allows a remaining original tenant to replace a departing tenant with a “replacement” occupant, assuming at least one original tenant remains and the subletting is a one-for-one swap. The second allows a tenant to move in a direct relative, provided defined occupancy limitations are satisfied. Both rules require the tenant to seek permission from the landlord first; not surprisingly, these regulations limit the ability of an owner to say no.

What if the subtenant is not a one-for-one replacement or direct relative, and no permission was sought? If the rental agreement states that such subletting is restricted unless there is consent by management, you may be able to demand that the unwanted roommate leave. State law permits you to serve either a “three-day notice to quit” or a “three-day notice to cure or quit,” the first which endeavors to end the tenancy after three days and the latter which gives the master tenant three days to remove her friend in order to save the tenancy. Some judges believe the local rent law requires that the offending tenant be given three days to cure rather than face automatic lease termination. However, a few lawyers have successfully used the three day to quit route, seeking eviction of everyone with no opportunity to cure.

Regardless of what strategy you employ, make a decision quickly. Letting time go by while the offense continues waives your ability to drop the hammer. In fact, accepting rent with knowledge of a lease breach could very well foreclose your ability to serve legal notice regarding subleasing for the duration of the tenancy. So when is there sufficient evidence to justify commencement of legal action? No bright line test answers this question. Long-term guests may not be subtenants. Sometimes, friends receive packages/mail/UPS delivery for each other. In buildings without doormen or onsite managers, it may be difficult to monitor the comings and goings of people. Many owners simply approach their tenants when they suspect wrongdoing. You may be amazed at how many people are either brutally honest or bad liars. Today’s technology also makes utilization of surveillance cameras feasible and economical. In addition, many licensed private investigators specialize in lease policing.

In sum, if you choose to object, act fast. Garner your evidence within weeks, not months. Then, confer with your attorney and implement a game plan. Remember, indecision will adversely affect your ability to stop unwanted subletting.

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