How to Respond to Tenant’s Sublet Request
Preferably, an owner wants to rent to a tenant who will stay in an apartment for at least the entire term of the lease. However, you will encounter tenants who, for various reasons, will want to leave temporarily before their lease ends and sublet their apartment. A sublet is a rental arrangement in which your tenant agrees to rent his apartment for a specific time period to another person, called a subtenant. Under this arrangement, your original tenant keeps the right to return and reoccupy the apartment when the arrangement ends.
Aside from the hassle of dealing with extra people moving in and out of the building, a sublet can be problematic for owners, because they may not enforce the lease against the subtenant without getting the tenant involved. For example, you may not sue the subtenant for damages to the apartment that the security deposit won’t cover. You must sue the original tenant. Another concern is that for rent-stabilized apartments, permitting sublets means lower rent increases in the form of a sublet surcharge rather than the vacancy increase you could get if the tenant permanently moved out instead.
Fortunately, tenants who are eligible to sublet must first ask your permission. The laws that cover subletting require that tenants follow a set procedure when making a sublet request and provide you with particular information about the proposed sublet.
We will provide you with the legally required elements of a proper sublet request and provide you with the means to gather the necessary information to make an informed decision about whether or not to deny the sublet request.
Sublet Law Basics
Usually, your tenant signs an agreement with the subtenant called a sublease. The subtenant is bound by both the terms of the sublease and by the terms of the tenant’s lease with you. Your tenant can enforce the sublease in the same way that you can enforce the lease. If the subtenant violates the sublease, your tenant can sue to evict the subtenant.
You have no direct legal relationship with the subtenant. So if a subtenant violates the lease, you must act against your tenant. To avoid a termination of the tenancy, your tenant must then take action against the subtenant. If the tenant does not act and the lease violation continues, you can terminate the lease—which causes the sublease to lapse—and sue to evict the tenant and the subtenant.
The sublet law (RPL §226-b) gives eligible tenants in buildings with four or more apartments the right to sublet. However, according to the law, the tenant needs your consent to sublet, and you cannot withhold your consent without a good reason.
Elements of Proper Request
The sublet law requires that a tenant’s sublet request must:
- Be in writing;
- Be sent to you by certified mail, return receipt requested;
- State the term of the proposed sublease (that is, when it will begin and when it will end);
- State the name of the proposed subtenant;
- Give the business and permanent home addresses of the proposed subtenant;
- Explain the tenant’s reason for subletting;
- List the tenant’s address during the proposed sublet;
- Contain the written consent of any co-tenant or guarantor of the lease; and
- Contain a copy of the proposed sublease—and a copy of the tenant’s lease if available— acknowledged by both the tenant and the proposed subtenant as being a true copy of the sublease.
Responding to Sublet Request
The amount of time you have to respond to a tenant’s sublet request depends on your course of action and whether you need additional information to make a decision. It is important for owners to follow these deadlines when responding to a sublet request because if you miss them, you may have to make your decision based on limited information, or it may be as though you consented.
Accept or reject the sublet in 30 days. If the tenant’s sublet request contains all the information you need to make an informed decision about the sublet, you must send the tenant a notice either accepting or rejecting the sublet request within 30 days of the date the tenant mailed the request to you.
Request more information about the sublet within 10 days. You must send a request for more information within 10 days after the tenant sends you the written request to sublet. The sublet law lets you demand additional information about the proposed subtenant’s finances, rental history, and the terms of the sublease.
When you get a tenant’s sublet request, you should evaluate the proposed subtenant by exactly the same standards that you use in selecting any other new tenant, such as financial stability, credit history, references, and other criteria. If the prospective subtenant fails the test that you apply to all potential tenants, you will be legally justified in denying the request.
Once the tenant sends you the information you requested, you have 30 days from the date the tenant sent you additional information to consent to or reject the sublet.
Reject sublet request as defective within 10 days. Technically, you can reject a sublet request if it omits required information. But the most practical response may be to simply ask the tenant for the missing information as well as any other information you need to make your decision, because the tenant will just submit the request again. Remember to request this additional information within 10 days after the mailing of the tenant’s request to sublet.
Use Application to Gain Additional Information
Chances are that you won’t be able to make an informed decision about a subtenant based only on the information that is legally required to be included in the tenant’s sublet request. A simple way to ensure that you obtain the necessary information is to have the proposed subtenant fill out an application, like our Model Form: Use Application to Gather Additional Sublet Information.
If a subtenant does not submit an application, this would give you a reasonable basis to deny the tenant’s sublet request. In one case, a court found that a tenant never submitted a proper sublet application despite the owner’s repeated request for one. Therefore, the owner had a reasonable basis to deny the tenant’s sublet request, since she never submitted a proper application [Jones v. Morgan Builders, Inc., March 1999].
When putting together an application, it is important to avoid overly burdensome requests for additional information. The sublet law specifically prohibits owners from making “unduly burdensome” requests for additional information. This means avoiding repetitive or irrelevant questions or requiring the tenant to fill out extremely lengthy questionnaires. These types of tactics are intended to discourage the tenant from subletting rather than gather necessary information and can backfire on the owner.
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