Realty Times: Subletting Your Apartment

November 2, 2000

Subletting Your Apartment
by Courtney Ronan

You're renting an apartment - a great apartment, and then your company asks you to do a six-month assignment in another state. It's a good opportunity to advance your career, so you elect to go. You don't have the financial resources, however, to continue to pay your rent while you reside in another locale; and your company, while generous, isn't generous enough to pay for six months' worth of rent.

Moving out of your apartment and establishing another home base for six months isn't an option; it would be a tremendous expense out of your present apartment, move your entire life across the country for six months, and then move back to your hometown. You'd face the stress of finding another place to live, and besides, you don't want to give up your apartment.

So you decide to sublet your apartment. Your lease, however, contains a clause telling you that you're forbidden from subletting your unit. What you may not realize, however, that the law protects your right to sublet your unit, making any clause in your lease that contradicts that right effectively null and void, according to tenant attorneys Michael Finder, Thomas Kerrigan and Andrea Novick. An exception to this rule is tenants living in rent-controlled units, who may sublet their units only if their leases state that they may sublet; or if their landlord approves the sublet.

If you're interested in subleasing your apartment, you should follow the steps outlined below, which help to protect your rights as a tenant. Ideally, you should have a tenant in mind who will sublet your apartment - someone whom you know and trust, or with whom you have at least been acquainted. Going "potluck" with your apartment is much like playing Russian roulette. You'll either get lucky and sublet your apartment to someone responsible; or you'll come back to an apartment that has suffered considerable damage from a reckless occupant. It's probably not worth the risk, so ask around and find out if anyone you know is interested in subletting your apartment.

First, write your landlord a letter asking for his or her permission to sublet your unit to another tenant. The letter should contain the following points:

The reason you wish to sublet your apartment, which can help your case if you have a skeptical landlord. A temporary job transfer, a semester abroad or some other valid reason - which both represents a good opportunity and has a specific end date that almost guarantees your return - will help put you in good graces with your landlord and increase your chances of getting a "yes" if you're living in a rent-controlled unit and must obtain a landlord's approval before subletting your unit. Regardless of whether you live in a rent-controlled property, however, you must clearly demonstrate your intent to return in your letter.

Duration of your sublet, which should not exceed two years. Include your proposed start and end dates. If you're not yet sure what those dates will be, and you're unsure how long you'll ultimately need to sublet your unit because the length of your time away is still undefined, err on the side of excess. It's better to overestimate than underestimate. Attempting to extend your sublet later will be difficult.

The name of the person whom you want to sublet your apartment, as well as his/her current (permanent) home address, work address, and home and office telephone numbers.

Your temporary address during the duration of your sublet.

Signature of any roommate(s), spouse or others with whom you reside, which indicates their knowledge and approval of the sublet.

A draft of a sublet agreement ("sublease") that you have created.

A brief letter that verifies the validity of the sublease you have drafted, and which states that both you and your proposed subtenant agree to abide by its terms. Both of you should sign the letter and have it notarized.

If you still have a copy of your own lease (and you should), make another copy for the landlord, and attach it to the draft of the sublease. Make multiple copies of this documentation for your records, then send the letter and its attachments via certified mail and with a return receipt request. Even if your landlord lives across the street from you, you'll want to send the letter in this manner versus hand delivery. Your return receipt is your protection and your insurance that your landlord did, in fact, receive your request to sublease your unit. A

What can you expect after receiving your return receipt in the mail? Your landlord probably will ask you to produce a list of references that will verify your proposed tenant's current employment and other sources of income, as well as his/her rental and credit history. Your landlord has 10 days from the time of his/her receipt of the letter to make such requests for additional information. Assuming that you send your landlord the information he/she has requested in a timely manner, you should receive within 30 days a decision about whether or not your request to sublet your apartment has been approved.

If your request has been denied, your landlord should elaborate on the reasons why. If your landlord fails to respond to your request for consideration within a 30-day period, this lack of response is considered an approval to sublet your unit.

If your landlord denies your request to sublet your apartment, you don't have much recourse if his or her reasons are valid. You can't back out of your lease at this point; you're held to the terms of your original lease until it expires, period. If you feel that your landlord has denied your request on unreasonable grounds, and you're determined to sublet, it may be in your best interests to seek counsel from an attorney specializing in tenant issues.

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