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How to Sublet Without Breaking the Law

by Alex Lipton

How to Sublet Without Breaking the Law

It’s a question that comes up all the time in the summer: can you sublease your apartment without breaking the law? Instead of giving you the answer you always hear from lawyers (“it depends”), here is what the law says in the three most populous cities in the country: New York City, Los Angeles, and Chicago.

New York City

In New York City, tenants must obtain approval from the property owner or landlord before subleasing their apartment. So what happens if the property owner doesn’t want you to sublease the apartment?

In an apartment complex with fewer than four units, the property owner has the unconditional right to deny you from subleasing your apartment. However, if the property owner “unreasonably” withholds approval, you can be released from your lease after providing thirty days notice. So if you planned to sublease your apartment for six months because you’re moving to San Francisco and the property owner says “no” without a reasonable explanation, you can demand that your landlord release you from the lease upon thirty days notice.

In an apartment complex with four or more units, you must get approval from the landlord. The landlord can only deny you your right to sublease when he or she has a “reasonable” explanation for doing so. That means that if you live in a big apartment complex in the city and want to sublease your apartment, you will be allowed to do so unless your landlord gives you a “reasonable” explanation as to why he or she will not approve your sublease.

So how exactly do you obtain approval from your landlord? Under New York law, tenants must write a letter to their landlord via certified mail informing the landlord of their intent to sublease the apartment. In this letter, you need to include how long the sublease will last (also known as the “term” of the sublease), the name of the person you are subleasing the apartment to, your reason for subletting, your updated address during the duration of the sublease term, the written consent of any guarantor or cotenant on your lease, and a copy of the sublease agreement. The landlord must respond to your letter within thirty days; if they do not respond within thirty days, their failure to respond constitutes consent and you can sublease your apartment.

Before you sublet your apartment, make sure you check out your state and local laws governing subleases as well as your original lease agreement. Though it might seem like a lot of work in the beginning, you can save yourself – and your home – from future legal entanglements by doing it right from the start.

Though it’s unlikely, you might find yourself in a situation where your landlord says that you waived your right to sublease when you signed your original lease. However, New York law makes clear that “any provision of a lease or rental agreement purporting to waive [this section describing your subleasing rights] is null and void,” so rest assured you can’t waive your right to sublease when you sign a lease agreement with your landlord.

Note two special considerations for New York City subleasing: First, the information above does not apply to rent-stabilized apartments or public housing. Second, because of a law enacted in 2011, New Yorkers cannot sublease their apartment for fewer than thirty days. The law upset many Airbnb hosts and vacation rental owners who were enjoying thousands of dollars of extra income. If you live in New York, you may have noticed the slew of new advertisements on the subways and TV advocating for a change to the law.

Los Angeles

In Los Angeles, most leases include a provision explicitly stating that you are not allowed to sublease your apartment. Unlike New York, California does not have a law that voids such provisions, so if your lease says that you cannot sublease, that’s the end of the story.

Many leases will not outright prohibit subleasing, but will instead require that the current tenant seek approval from the landlord before the landlord allows the sublease to take place. Where the lease requires landlord approval, you are contractually obligated under California law to obtain approval before going forward with the sublease.

You might find yourself in the rare situation where your original lease does not prohibit subleasing or even require landlord approval. Instead of subleasing your apartment without any notice to your landlord, we suggest being upfront about the subleasing agreement; subleases work best when everyone affiliated with the property has advance notice about the arrangements, even if you have no contractual obligation to let your landlord know.

Chicago

Chicago ordinances governing subleases prove to be the most tenant-friendly of the three major cities. In Chicago, landlords must accept any “reasonable” sublease and cannot require you to pay a fee for subleasing your apartment. However, the ordinance should not be interpreted to mean that your landlord must accept any subtenant. The language of the ordinance suggests that the landlord can apply the same criteria that they use for their regular tenants when deciding whether or not to allow the subtenant to enter into a sublease. So if your subtenant has terrible credit or prior convictions, it’s very likely that your landlord would not be required by law to accept the sublease because such a sublease would not be “reasonable.”

Also, not every property in Chicago is covered by this tenant-friendly ordinance. For example, properties with fewer than seven apartments and dormitories are not affected by this law, so landlords in those buildings would not be obligated to consent to any reasonable sublease arrangement.

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There’s nothing worse than running into trouble with the law, especially when your legal trouble involves the place you call home. Before you sublet your apartment, make sure you check out your state and local laws governing subleases as well as your original lease agreement. Though it might seem like a lot of work in the beginning, you can save yourself – and your home – from future legal entanglements by doing it right from the start.

This article is for educational and informational purposes only; it is not legal advice. The author and Shake, Inc. disclaim all responsibility for any and all losses, damages, or causes of action that may arise or be connected with the use of this information. Please consult a licensed attorney in your area with specific legal questions or concerns.

 

Alex Lipton is a Legal Researcher at Shake and a Mitchell Jacobson J.D. Scholar at NYU School of Law. He also serves as Vice President of Operations for the InSITE Fellowship.  Find him on LinkedIn or on Google+.