Roommates, sublets and lease assignment in New York

The roommate law: who can live with you

A landlord may not limit an apartment to the tenant named on the lease, or to that tenant and their immediate family. A lease clause that tries to is unenforceable, and you can't sign that right away (Real Property Law §235-f).

How many people the law allows depends on how many tenants signed the lease:

• One tenant on the lease. You may live with your immediate family, one additional occupant, and that occupant's dependent children, as long as you or your spouse live there as your primary residence.
• Two or more tenants on the lease. The tenants, their immediate families, occupants and occupants' dependent children may live there, as long as the number of tenants and occupants together (not counting occupants' dependent children) is no more than the number of tenants on the lease, and at least one tenant or a tenant's spouse lives there as their primary residence. So if one of two named tenants moves out, another person can take their place.

You must tell the landlord the name of any occupant within 30 days of them moving in, or within 30 days of the landlord asking. An occupant gets no right to stay if you leave, and no other rights of a tenant, unless the landlord gives express written permission (RPL §235-f).

A landlord can still limit numbers to comply with other laws, such as overcrowding rules. Anyone harmed by a breach can sue for an injunction, actual damages and court costs (RPL §235-f; NY Attorney General).

Only the people who sign the lease are tenants, and a landlord deciding whether to accept you usually looks at their incomes, not an occupant's. If two or three of you are signing together, see what rent your combined incomes would pass the 40 times rule for.

Subletting: the right to ask, and how

A sublet is for when you leave for a while and mean to come back. In a building with four or more residential units, a tenant with an existing lease has the right to sublet, subject to the landlord's written consent in advance, and that consent "shall not be unreasonably withheld" (Real Property Law §226-b). In a building with three or fewer apartments there is no such right; the Attorney General says you can ask, but the landlord doesn't have to agree (NY Attorney General).

The request must go by certified mail, return receipt requested, and include:

• the term of the sublease;
• the name of the proposed subtenant, and their business and permanent home address;
• your reason for subletting, and your address during the sublease;
• the written consent of any co-tenant or guarantor on the lease;
• a copy of the proposed sublease, with a copy of your lease attached if available, acknowledged by you and the subtenant as a true copy.

Within ten days of your mailing, the landlord may ask for more information, but the request can't be unduly burdensome. Within 30 days of your request, or of the extra information, whichever is later, the landlord must send you its consent or its reasons for refusing. If it sends nothing, that counts as consent (RPL §226-b).

What happens next:

• Consent. You can sublet as requested, but you stay liable for everything in your lease, including the rent.
• Reasonable refusal. There's no sublet, and you aren't released from the lease.
• Unreasonable refusal. You may sublet as requested anyway, and you can recover the costs of the proceeding and attorney's fees if a court finds the landlord withheld consent in bad faith.

The law doesn't list what counts as a reasonable refusal; HCR notes that disputes over consent go to the courts, not to the agency (HCR Fact Sheet #7). A sublet or assignment that doesn't follow the section is a substantial breach of the lease, which can put your tenancy at risk (RPL §226-b).

Assignment is not a sublet

An assignment hands your whole interest in the lease to someone else, and you leave for good. A sublet is a temporary absence by a tenant who intends to return (HCR Fact Sheet #7).

Unless your lease gives you more, you can't assign it without the landlord's written consent, and the landlord can refuse without giving a reason. If you ask and the landlord refuses unreasonably, it must release you from the lease on 30 days' notice, and that release is your only remedy. If the refusal is reasonable, there is no assignment and you aren't released (RPL §226-b).

Extra rules for rent-stabilised apartments

If your apartment is rent-stabilised, the sublet rights above apply subject to the rent stabilisation laws (RPL §226-b), and those add limits. From HCR's fact sheet and the Attorney General's guide:

• Rent. You can't charge the subtenant more than the legal stabilised rent, plus up to 10% of it if you sublet the apartment fully furnished. You can't ask for "key money". For the length of the sublet, the landlord may add the sublet allowance set by the Rent Guidelines Board to your rent, and you may pass it on to the subtenant (HCR Fact Sheet #7; NY Attorney General).
• Overcharges. A subtenant who is overcharged can complain to HCR on form RA-89. If HCR finds an overcharge, the prime tenant must refund three times the overcharge (HCR Fact Sheet #7).
• Two years in four. You may not sublet for more than two years in the four-year period ending when the sublease ends. The sublease can run past the end of your lease, and you, not the subtenant, keep the right to a renewal (HCR Fact Sheet #7).
• Primary residence. You must have kept the apartment as your primary residence and mean to move back. The Attorney General warns that frequent or long sublets can give the landlord grounds to seek possession for non-primary residence (NY Attorney General).

If the "prime tenant" never actually lived there, HCR calls it an illusory tenancy. The subtenant can complain on form RA-90, and if HCR agrees it can require the owner to recognise the subtenant as the tenant, with a renewal lease at the lawful stabilised rent (HCR Fact Sheet #7). Rent-controlled apartments follow different rules again. Not sure which you have? Read our guide to checking.

Co-op and condo buildings

The sublet section doesn't apply to a co-op shareholder's proprietary lease (RPL §226-b), so whether a co-op owner can sublet is set by the building's own documents and its board. In practice, co-ops tend to limit how long and how often an owner can sublet, approve each subtenant, and often charge a fee. Condos are usually less strict, though many have their own rules on minimum lease terms and an application for each new tenant.

Renting from an owner in either kind of building, expect a building application too. Buying and might rent it out later? See renting out a co-op or a condo.

Splitting the rent fairly

No law tells roommates how to share the rent, so it's up to you. Common approaches:

• Equal shares. Simple, and fair when the rooms are much the same.
• By room. Weight each share by bedroom size, a private bathroom, closet space or outdoor space, then check that the shares add up to the full rent.

Write it down, with who paid the deposit, how utilities are split, and what happens if one of you leaves early. Leases commonly make each tenant who signs responsible for the whole rent, not just their share, so read yours before you agree.

To compare apartments for a group, add each one to the rental tracker, which shows the true monthly cost with fees, utilities and free months included, then divide. Before you pay anything up front, check the limits in what you can be charged when renting.

Short-term rentals (Airbnb and similar)

A short stay is not a sublet. Under the city's rules, a short-term rental is a stay of fewer than 30 days. You may not rent out an entire apartment or house for fewer than 30 days, whether you own it or rent it, and however many units are in the building. A short stay is legal only if you live in the same apartment as your guests, they have access to the whole unit, and there are no more than two guests (children under 4 aren't counted) (NYC Office of Special Enforcement).

Local Law 18 of 2022 also requires hosts to register with the Mayor's Office of Special Enforcement, and bars booking platforms such as Airbnb and VRBO from processing transactions for unregistered short-term rentals (OSE). Only a person who permanently occupies the unit can register, and registration isn't available for rent-stabilised, rent-controlled or NYCHA apartments, or in buildings on OSE's Prohibited Buildings List. The application fee is $145, plus a processing fee, and is non-refundable. Stays of 30 nights or more are not short-term rentals, and OSE counts the check-in date as day zero, so a 29-night stay is short-term (OSE FAQ).

OSE suggests tenants check their lease and talk to their landlord before applying.