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Summer is almost here and if you’re a typical New Yorker, you’re likely already planning to leave. Of course, whether you’re planning a week-long escape to the Hamptons or an overseas trip, you’ll still be responsible for your rent or mortgage payment and fees. This can make the idea of subletting your apartment or doing a vacation swap tempting, but can you do this legally?

 

If you own your own home, you’re free to do whatever you like—that is, as long as you plan to sublet your home for at least 30 days. If you own in a co-op, this may not be possible, since your co-op board will likely have its own restrictions. If you’re a condo owner, you will also likely face at least some restrictions. Finally, while some renters, including those in Section 8 buildings, can’t sublet, other renters can but only with the permission of the unit’s owner and only if and when they follow very specific guidelines. By contrast, home swaps are generally subject to fewer restrictions, but they can still land owners and renters in trouble if not navigated properly.

The legality of sublets

 

If you’re thinking about subletting your apartment in New York City, good luck. According to New York City bylaws, you can sublet, but for no less than 30 days. This means that if your vacation is only one to three weeks, which is true for most people in the United States, subletting is essentially out of the question. If you’re an owner, this may sound unfair, but it’s the law. The regulations are clearly stated on the NYC Office of Special Enforcement website.

 

If you can take a leisurely month-long vacation—let’s say, because you happen to be a teacher, freelancer, retiree, or just someone with four weeks allotted vacation time—you may be able to legally sublet your home in New York City, but this will still depend on the type of building in which you live and whether you’re an owner or renter.

 

Owners

 

If you’re an owner, bear in mind that most co-op and many condo boards have their own rules about subletting. In some cases, the board will simply want to be informed. In other cases, the board will need to approve the individual or individuals to whom who are subletting. In other cases, your board may not permit sublets at all.

 

Renters

 

If you’re a renter, the situation is a bit more complicated. According to the NYC Rent Guidelines Board, renters are “entitled to request permission to sublet from the owner, and the owner may not unreasonably refuse such permission.” But the guidelines further state that the renter must “inform the owner by certified mail, return receipt requested, no less than 30 days prior to the proposed subletting.” Moreover, the request must contain a.) the term of the sublease; b.) the name of the proposed sublessee; c.) the business and permanent home address of the proposed sublessee; d.) the reason for the sublet request; e.) your address for the term of the sublease; f.) written consent from any co-tenant or guarantor on the lease; and g.) a copy of the proposed sublease (along with a copy of your lease, if available) acknowledged by the tenant and subtenant as a true copy of the sublease.

 

The good news is that if the owner doesn’t respond to your request within 30 days, then you can legally conclude that they have given their tacit consent. If the owner “unreasonably withholds consent to sublet,” you can also proceed with the sublet, though doing so may cause more trouble than it’s worth. The bad news is that owners can charge a “sublet allowance” (this is usually 10 percent of your rent). You can pass along this fee to your subletter and, assuming your apartment is already furnished, you can also charge an additional 10 percent fee. However, beyond the sublet allowance and furnishing fee, you can’t legally charge more for your unit than you are already paying. In other words, if you have ever fantasized about renting out your one-bedroom apartment for $500 per night throughout the month of July, think again. You might be able to do this, but it’s technically illegal, and if you’re caught, you’ll likely be evicted.

 

For a complete list of subletting rules, consult the HCR Factsheet.

The legality of home swaps

 

Unlike sublets, home swaps fall into a gray zone. It all comes down to how one interprets the law. One might say that if someone is in your unit when you’re not there, it is a sublet. Someone else might argue that as long as no money has exchanged hands, it is not a sublet. For this reason, in New York City, one should always proceed with caution when home swapping but not necessarily rule it out.

 

As a rule, if you own your own home—for example, a townhouse in Park Slope—you can do whatever you like for whatever period of time. If you own a co-op, you should definitely still check with your board. While the board may be flexible, most co-op boards will want to know who will be occupying your unit while you’re on vacation. In addition, some co-ops may place time limits on home swaps (e.g., only permit home swaps for up to two weeks). Condo residents may or may not face similar restrictions.

 

Again, when it comes to home swaps, renters will generally face more restrictions than owners. That said, according to New York State law, home swaps are technically legal. If you live in a class A dwelling (i.e., any building with three or more units), according to the New York Multiple Dwelling Law , the “incidental and occasional occupancy of such dwelling unit for fewer than thirty” is legal provided “the permanent occupants are temporarily absent for personal reasons such as vacation or medical treatment” and “provided that there is no monetary compensation paid to the permanent occupants for such occupancy.” In other words, a renter can do a home swap, provided it is less than 30 consecutive days in length. Still, renters are strongly advised to only proceed if they have first informed their unit’s owner and/or their management company, informed their neighbors, and if they live in a co-op or condo, received permission from the building’s board.

Is it worth it?

 

Every year, thousands of New Yorkers do sublet and swap their homes and enjoy the payback. But how do you know whether your sublet or home swap will be worth it?

 

To answer this question, you first need to consider all the potential risks. If you’re worried that your decision to sublet may cause damage to your home, building, or long-term relationships with your neighbors or co-op board, you may not want to sublet or engage in a home swap. The short-term financial gain won’t be worth it if you create long-term problems in the process. Likewise, if you’re a renter and there is any risk your sublet might lead to an eviction, don’t do it. Even if you don’t love your current apartment, bear in mind that an eviction will tarnish your reputation as a renter and may impact your ability to rent in the future.

 

In addition, consider which scenario will ultimately be more relaxing. Subsidizing an expensive summer vacation by subletting or home swapping may reduce your stress levels. But don’t underestimate the stress associated with preparing your home for visitors, especially for strangers who will ultimately be able to leave a rating of you and your home on a public platform. It can take anywhere from a few hours to several days to properly clean and stage a home for visitors, but is this really what you want to be doing in the days leading up to your vacation? In addition, there is nothing worse than worrying about whether or not a complete stranger has arrived and managed to get into your apartment successfully, especially if you happen to be on an overseas flight and unable to respond to messages.

 

The bottom line is that if you are a.) leaving for more than 30 days (or home swapping for less time); b.) have gained permission to sublet or home swap from your co-op or condo board, immediate neighbors, and/or owner or manager; and c.) can handle the stress of inviting strangers into your home, a sublet or home swap may be a great idea. If you’re at all worried about the logistics, preparation, and potential things that might go wrong in your absence, you may be better off leaving the dust to settle in your New York City apartment while you vacation elsewhere.

Lead image via Pixabay
Contributing Writer Cait Etherington Cait Etherington has over twenty years of experience working as a journalist and communications consultant. Her articles and reviews have been published in newspapers and magazines across the United States and internationally. An experienced financial writer, Cait is committed to exposing the human side of stories about contemporary business, banking and workplace relations. She also enjoys writing about trends, lifestyles and real estate in New York City where she lives with her family in a cozy apartment on the twentieth floor of a Manhattan high rise.
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