How To Sublet Legally

One of the most common questions that we receive at Flip is, “Wait, isn’t subletting illegal?” Well, we’re here to clear the air once and for all. Ahem — NO.

The first thing you need to know about subletting is that it is a very specific case. People throw the word “sublet” around for almost every situation where someone not on a lease fills an apartment for a bit — from roommates to part time guests on vacation. A sublet is contract between you, your landlord, any co-tenants or guarantors, and the subtenant, wherein the subtenant resides in your absence. If you’re still living in your apartment while “subletting” you’re doing it wrong.

Apart from this, many lease terms also include clauses that prohibit subleasing, which is often contradicted (and are even rendered void by) the law. In New York, it’s the New York Real Property Law 226-b to be exact. With that said, it is illegal to not have authorization from your landlord or to have tried to get it.

There are certain conditions that have to be met before you may sublet. In New York you are allowed to sublet if:

  • You are on the lease, duh.
  • You live in a building with 4 or more apartments. (This does not apply to Public/Section 8 Housing, or Co-Ops.)
  • Your sublet is at least 30 days.

If you meet this criteria, your landlord cannot deny your right to sublet without “reasonable cause.” This may include a subtenant with a violent criminal background, terrible credit, or having a pet when the building doesn’t allow it. If your sublet is denied without reasonable cause, you can be released from your lease, free from penalty, 30 days following your sublet request.

So how do you make a sublet request? Put the following information into a letter and send it via certified mail to your leasing director or property manager. You will need to include;

  • How long the sublet will last
  • The name and permanent address of the proposed subtenant
  • The reason for subletting
  • Your address for the term of the sublet.
  • Written consent of any guarantor or co-tenant on your lease
  • A copy of the sublease agreement with the original lease attached (if available)

Within 10 days after mailing this, your landlord may ask for more information regarding the prospective subtenant, which you’re obliged to provide granted it’s not too outrageous. If you go through all this and don’t get a response within 30 days, you’re actually good to go. The landlord’s silence is taken as permission as far as the law is concerned.

Sadly for Californians, the law is not nearly as friendly to them as it is in New York. The practice, though, is pretty similar. Just like everywhere else you have a lot more leverage if you can find someone that your landlord can unreasonably refuse. So as a first step you should always look for a prequalified replacement.

The difference between New York and California is that contract law isn’t voided by state law. That means that you’ll have to follow what it says in your lease.

Take note, Californians, read your lease terms before you sign!

Things are generally as great for transient Chicago residents as they are for New Yorkers. — according to the law, your landlord must accept your sublessee and not charge you any kind of fee for doing so.

While state laws do vary, most require landlords to accept a suitable replacement you propose as a sublessee. Your interests and those of your landlords are actually pretty aligned here: often, when a property owner has a subtenant, they don’t even know the subtenant’s name or social security. For a landlord, an unknown occupant is petrifying. By letting you sublease legally they can avoid this state of affairs and you can move on with your life without breaking the bank.

Curious about other states? Let us know which you are in the comments below, and we’ll add the info to this post.

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