I’ve sublet a rent-stabilized apartment in NYC for five years. How do I take it over?
- One way is if the primary tenant agrees to give up the apartment and the landlord gives you a lease
- If the primary tenant overcharges you and has no plans to return, you may be able to claim the unit
A rent-stabilized tenant can sublet their apartment for up to two years.
iStock
I've sublet a rent-stabilized apartment for five years and the primary tenant has no plans to return. How can I take over the apartment?
Landing a rent-stabilized apartment provides a major advantage to many New York City renters. But taking over the unit from the tenant you’re subletting from—aka the primary tenant—will depend on your relationship with them.
There are three ways a NYC subletter can take over a rent-stabilized apartment from the primary tenant. You can get the primary tenant to hand it over, you can inherit it (if the two of you are family), or you can take it over if the primary tenant has been overcharging you. And there’s a chance they might be—rent-stabilized tenants are only allowed to sublet their apartment for two years; it's illegal to sublet the unit for five. (More on that later.)
[Editor's note: Realty Bites tackles your NYC rental questions. Have a query for our experts? Drop us an email.]
When you have a chill landlord (and tenant)
If you have a good relationship with the primary tenant you’re renting from, you may be able to take over the apartment with their permission.
To do so, the primary tenant would have to agree to relinquish their right to the apartment and the landlord would have to offer you a lease, said Altagracia Pierre-Outerbridge, an attorney and founder of Outerbridge Law who represents residential tenants, condo owners and landlords (and a Brick sponsor, FYI).
“If the primary tenant says that they don’t want to return and the landlord agrees to it, you get a lease,” Pierre-Outerbridge said. But you and the primary tenant “have to come to an agreement at the same time. And it needs to be recognized in writing.”
The good news is that your landlord may be inclined to let you keep the place. Since the passage of the 2019 rent reforms, landlords can no longer deregulate a rent-stabilized apartment once it’s vacant. In other words, they no longer have a financial incentive to put the unit on the market, said Jennifer Rozen, managing attorney at Rozen Law Group.
“This has become easier since landlords can no longer significantly increase the rent or deregulate a rent stabilized apartment,” Rozen said in an email. But “this is only possible if the tenant cooperates by giving up their rights to the apartment.”
If you’re being overcharged
There is another way to take over a rent-stabilized apartment, if you can prove that the primary tenant is illegally charging you extra rent and doesn’t use the unit as their primary residence.
To do so, you’ll want to first request your rent history by emailing or mailing this form to the New York State Division of Housing and Community Renewal (DHCR). Or you can fill out the nonprofit JustFix’s online tool, and they’ll make the request for you.
Once you’ve received your rent history, compare the rent the landlord is charging the primary tenant to what you’re paying. (Just FYI: The primary tenant can legally tack on an extra 10 percent on top of the legal regulated rent if the apartment is furnished.)
If you’re being overcharged, you may be able to claim that the apartment should be yours because it’s an “illusory tenancy”—i.e. the primary tenant is pretending that the apartment is their primary residence. But in reality, they’re living somewhere else and charging you more than the legal limit for rent.
You can file an overcharge complaint with the DHCR against the primary tenant and a complaint requesting a lease. You should note that you’ve lived there for five years, which is more than the legal maximum of two. If DHCR agrees with you or you win in court, you could get the apartment and a refund for the rent you overpaid, said Jeffrey McAdams, a tenant attorney at McAdams Law.
But at this point, you might want to consider getting a lawyer, Pierre-Outerbridge said. An illusory tenancy claim is likely to tick off the primary tenant, and you need to prove both that you've been overcharged and that the primary tenant isn't using the apartment as their residence to succeed.
“It’s very adversarial, so you do need an attorney,” she said.
When the original tenant is family (or like it)
Lastly, you can actually inherit a rent-stabilized apartment if the primary tenant was a family member, or if you were so close you were essentially family.
To inherit an apartment, you have to prove that you lived with your family member for at least two years before they moved out (or less if they are elderly or disabled). That means collecting a paper trail of letters, bills, credit card statements, or other documentation.
It’s unlikely your landlord will challenge your right to inherit a rent-stabilized apartment—or succession, as it’s usually dubbed—thanks to the passage of the 2019 rent reforms.
For more intel, check out: "Understanding ‘succession rights,’ a complex issue for rent-regulated tenants” for a full rundown of how to take over a family member’s apartment.
