Subletting Under Rent Control

Q. I live in a rent-controlled apartment on the Upper East Side. Last fall, I was thinking about doing an exchange with a couple in Paris for a few months. When I asked my landlord for permission, he said he could not allow me to do that. What are the rules? . . . Carol Wheeler, Manhattan.

A. Lucas A. Ferrara, a Manhattan real estate lawyer, said that allowing someone else to use an apartment, even in an exchange arrangement, usually creates a subtenancy.

Many New York tenants, he said, have a statutory right to sublease their apartment despite any restrictions or prohibitions in their lease. Usually, Mr. Ferrara said, tenants with leases in Buildings having four or more residential units have a right to sublease their apartment, with certain restrictions.

Rent-stabilized tenants may not sublease their apartments for more than two years of the four years preceding the end of a sublease. For instance, if a sublease ends on Dec. 31, 2003, the apartment may not have been subleased for more than two of the years beginning Jan. 1, 2000. The tenant may not charge more than the current rent unless the additional charge is for furnishings. (The landlord may charge the prime tenant a sublet allowance during the sublet if it occurs during a renewal lease term, rather than the initial lease. The prime tenant may pass along this allowance to the subtenant, and may also charge an additional 10 percent for using the Furniture.)

But, Mr. Ferrara said, the law does not apply to all tenants. Owners of co-ops, and market-rate subtenants of the owners, are not protected, he said, nor are public-housing tenants.

Rent-control regulations (as opposed to those under rent stabilization) do not require tenants to have current leases—and many rent-controlled tenants do not have them. Such tenants without a current lease are not allowed to sublease without the owner's consent, unless a previous lease granted that right. So if the writer has a lease in a building with four or more units, Mr. Ferrara said, it is likely the landlord cannot unreasonably withhold consent; but if she does not have a lease, the landlord can probably prohibit the sublease.