Ask Sam: What are my rights as a NYC renter in a market-rate apartment?

Rent-stabilized tenants are entitled to certain protections that market-rate tenants are not, but you still have a number of rights you should be aware of, says Sam Himmelstein, a lawyer at the firm Himmelstein, McConnell, Gribben & Joseph who represents residential and commercial tenants and tenant associations.

Now that New York’s eviction moratorium has ended, it’s important to know your rights, especially if you fell behind on your rent because of the pandemic. And while stabilized and market tenants have some different protections, changes to rent laws passed by the New York State legislature in 2019 greatly expanded the rights of all tenants.

The following rights apply to all New York City tenants, regardless of whether they are living in rent-stabilized apartments or market-rate apartments:

• The right to sublet: Under New York State real property law, tenants can sublet their apartments—even if their leases say otherwise. “A lot of these statutes have a provision that says any agreement by a tenant to waive this right is void,” Himmelstein says, meaning that even if you’ve signed a lease that includes a rider forbidding subletting, you can still do so. Note that you must follow specific procedures to sublet legally, including sending your landlord a notice of your intent to sublease with detailed information about your subletter through certified mail. If your landlord unreasonably withholds their consent for you to sublet, you can proceed with the sublet, and defend the case that the landlord starts against you in housing court by demonstrating that you followed the sublet procedures and the landlord unreasonably refused to consent.
• The right to assign: Similarly to subletting, you have the right to assign your lease to a new tenant if you follow procedures and get your landlord’s consent. If they unreasonably refuse consent, you can legally break your lease and move out early. This issue arose for many New Yorkers who lost work at the height of the Covid-19 pandemic and needed to move out of their apartments before their leases were up. “Now they’re getting hit with breach of lease cases, because they moved out and left behind months of unpaid rent,” Himmelstein says. “One way to legally break a lease is to assign it to another tenant, but most tenants aren’t aware they can do this.” The difficult part, he adds, is often finding the assignee. But if you do find one, and your landlord unreasonably refuses to consent to the new tenant, you can break your lease without being sued. 
• The right to a roommate: This right is also enshrined by state law, “even if the lease says the apartment can only be occupied by the tenant and the tenant’s immediate family,” Himmelstein says. As long as you inform your landlord within 30 days after the roommate moves in, that roommate can legally occupy the apartment with you.
• The right not to be retaliated against: Landlords cannot retaliate against tenants who have filed complaints, enforced their own rights under the lease, or joined a tenants’ association, according to New York law. Retaliation could include not renewing a lease or charging the tenant additional fees as a penalty for their actions. Landlords found in court to have charged punitive fees will have to reimburse them triple what they charged.
• The right to be informed about upcoming changes to your lease: This right has been strengthened under the new legislation. Now, if you’ve lived in your apartment for one year, your landlord must give you at least 30-days’ notice if they plan to raise the rent by 5 percent or more, or if they will not renew your lease. If you’ve lived in your apartment between one and two years, they must give 60-days’ notice; if you’ve lived there longer than two years, 90-days’ notice. “They can’t take you to court for holding over beyond the expiration of your lease unless they’ve given you that notice,” Himmelstein says. “This gives tenants more time to move and will cut down on litigation.”
• The right to participate in a tenants association: All tenants are legally permitted to create, join, or participate in a tenants association. (Here's how to form your own tenants association.)
• The right to occupy your apartment until the lease expires: Provided that you don’t do anything in breach of your lease—like illegally subletting it through Airbnb or keeping a pet in a no-pets building—or are being a nuisance—creating a safety hazard or damaging property, for instance—you have the right to remain in your apartment until the lease expires. “The biggest difference is that once that lease expires, you don’t have a right to renew it without your landlord’s agreement, whereas stabilized tenants do, unless the landlord has grounds for evicting the," Himmelstein says.
• The right to getting your security deposit back (minus the cost of repairs): The new rent laws state that tenants now have the right to have their apartments inspected by their landlords before they move out. Within 14 days of the tenant vacating, the landlord must provide them with an itemized list of the repairs their security deposit will be used for (if applicable) and return the balance.  If the landlord doesn’t provide the checklist, they waive their rights to keep any of the deposit. Furthermore, landlords can no longer ask for multiple months of rent upfront; they can only require payment of one month of rent in advance as security. This law only applies to leases entered into after June 14, 2019. Tenants whose landlords are refusing to return their security deposits after they move out (and do not have grounds to keep them) can file a complaint with the state Attorney General’s office, which now has a bureau that mediates disputes over security deposits. Tenants could also opt to sue their landlords in small claims court, as long as the security deposit is under $10,000.
• The right to a habitable apartment: “Your landlord has to comply with the warranty of habitability, provide essential services, and comply with the NYC Housing and Maintenance Code," Himmelstein says. This guarantees you necessities like heat and hot water, treatment in the case of a pest infestation, and repairs and maintenance of your apartment, as well as an apartment free of persistent leaks and mold.
• The right to quietly enjoy the apartment: This is a guarantee, Himmelstein explains, not of quiet—perhaps an impossibility in NYC—but that your landlord can’t impede your peaceful use of the apartment. “It means you occupy the space to the exclusion of all others during the team of your lease,” he says.
• The right not to be discriminated against: Under the city’s Human Rights Law, landlords cannot discriminate against prospective tenants on the basis of age, race, religion, sexual orientation, and a number of other protected categories. The same applies to tenants’ roommates.
• The right not to be harassed: The city outlaws landlord harassment of their tenants by serving unlawful eviction notices, threatening tenants, withholding necessary repairs, and more. Himmelstein notes that recent changes in the law have greatly strengthened New York’s anti-harassment statutes. It’s now a misdemeanor for a landlord to harass one tenant, and a felony to harass two or more.
• The right to certain legal protections if you breach your lease: If your found to have breached your lease, and the landlord takes you to court you now have 30 days to “cure” the violation after the court issues a decision whether it’s related to illegal subletting, alterations, or creating a nuisance. “This gives tenants more time to comply or move out, and more time before they’re hauled into court,” Himmelstein says. And if you break your lease, you could be protected from being sued by your landlord under the new laws. “The landlord has to make reasonable and customary efforts to re-rent the apartment at the same rent the tenant was paying or market-rate, whichever is lower,” Himmelstein says. “If you breach a lease, immediately go online and see whether the landlord is trying to re-rent the apartment. If they’re not, or they’re marketing the apartment for more than what you were paying, they’re violating the statute.” That means that if they tried to sue you for breaching the lease, the case would get thrown out.
• The right to rent an apartment even if you’ve been blacklisted: The tenant blacklist is comprised of lists of NYC renters who have been involved in housing court cases and are distributed by screening companies to landlords. In the past, this could create major hurdles to renting an apartment for tenants involved in housing court battles. The new laws state that landlords cannot deny tenants apartments solely because they’ve been blacklisted, though this is difficult to prove, and many tenant advocates argue this law should be strengthened. “Of course, landlords will never admit to doing it,” Himmelstein says. “The new law doesn’t give tenants the right to sue the landlord; for remedy you could file a complaint with the Attorney General’s office.”
• The right to new protections in holdover proceedings: If you’re brought into court on a holdover proceeding—a case to evict a tenant based on something other than nonpayment of rent—and the landlord wins, the courts now give you up to a year to move (before the new legislation, tenants had up to six months.) “Certain factors can be taken into consideration, like age, infirmity, and a child’s school schedule,” Himmelstein says. Note that these protections do not apply if the landlord can prove the tenant is guilty of nuisance-like behavior, which could include hoarding, using an apartment for illegal purposes, harassing building employees or neighbors, or seriously damaging property.
• The right to recover legal fees: “You have a right to recover your legal fees if your landlord takes you to court and you win, provided there’s a lease clause that permits the landlord to recover fees, too,” Himmelstein says. However, there is some controversy about how the new laws have changed this: the legislation states that landlords can only sue for rent in a summary proceeding (a fast-tracked process of eviction). “If the landlord or tenant wins the case, they can make a motion in the case to recover fees, but some are interpreting the new law to mean you have to start a separate lawsuit to get them back,” Himmelstein says. “We read it to say the landlord can’t sue for those fees as rent, but the law doesn’t change the manner in which you collect fees.”

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Sam Himmelstein, Esq. represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts, and many other issues. He is a partner at Himmelstein, McConnell, Gribben & Joseph in Manhattan. To submit a question for this column, click here. To ask about a legal consultation, email Sam or call (212) 349-3000.