How to Handle a Sublet or Assignment Request from a Deceased Tenant's Estate

A sublet is a rental arrangement in which a tenant rents his or her apartment for a specific period of time to another person, called a subtenant. In a regular sublease agreement, the original tenant keeps the right to return and reoccupy the apartment when the sublease ends. And during the time in which the apartment is sublet, the tenant remains responsible for all lease obligations, including rent.

Sublet Basics

Usually, the tenant and subtenant sign a lease of their own, called a sublease. The subtenant is bound by both the terms of the sublease and by the terms of the tenant’s lease with the owner. The tenant can enforce the sublease in the same way that the owner can enforce the lease. If the subtenant doesn’t live up to the sublease terms, the tenant can sue the subtenant and evict him.

With regard to the relationship between the owner and subtenant, in theory, the subtenant and the owner needn’t deal with each other. The owner has no direct control over the subtenant. If the subtenant violates the lease, the owner can act against the tenant only. The tenant’s the one who signed the lease and agreed to be responsible to the owner. To avoid a breach of the lease, the tenant must then take action against the subtenant. If the tenant doesn’t act, and if the lease violation continues, the owner can sue to evict the tenant and cancel the lease—which cancels the sublease too.

Tenant’s Options After Owner Responds

A tenant has these options after an owner responds to a written request to sublet:

1. If an owner consents to a sublet. The sublet may proceed according to the terms of the tenant’s request. The tenant remains ultimately responsible for his lease obligations, including paying the rent.

2. If an owner denies permission to sublet on reasonable grounds. The tenant can’t sublet, and the owner isn’t obligated to release the tenant from the lease. If an owner reasonably refuses a sublet request, and the tenant responds by breaking the lease, the owner can sue the tenant for lost rent.

Some valid reasons for refusing a tenant’s sublet request include the tenant’s sublet request being defective, the tenant not intending to return to the apartment, the owner finding the proposed subtenant to be unsuitable, and the rent that appears on the proposed sublease exceeds the legal regulated rent.

3. If an owner denies permission to sublet on unreasonable grounds. Under New York State law, an owner cannot unreasonably refuse a request to sublet an apartment. If the tenant goes ahead with the sublet, the owner can contest the sublet in court. Or the tenant can challenge the unreasonableness of the owner’s decision in court. If a judge ultimately determines that the owner acted in “bad faith” by withholding his consent, the tenant may get court costs and attorney’s fees.

Sublet Law Covers Assignments, Too

The sublet law also covers assignments. An assignment transfers whatever is left on a tenant’s remaining lease term to another person, called an assignee. The assignee steps into the shoes of the tenant and must observe all the tenant’s lease obligations. Unlike a sublet, the tenant has no right to return to the apartment after an assignment.

Assignee’s rights. Since an assignee gets all the rights of the former tenant, the owner must offer a renewal lease to the assignee at the end of the original lease term. And, if the building is converted to cooperative or condominium ownership, the assignee must be offered the chance to buy the apartment at the insider price. For these reasons, owners generally avoid assignments.

“Unreasonable” refusal lets tenant end lease. A tenant needs the written consent of the owner before assigning a lease. The owner’s consent may be “unconditionally withheld without cause.” This means that an owner may respond to a tenant’s assignment request by simply saying “no”; an owner doesn’t need a reasonable ground to say “no.”

If an owner “unreasonably” withholds consent to a tenant’s assignment request, the tenant can’t simply go ahead with the assignment or sue in court. But a tenant can ask to be released from the lease. An owner is required to release a tenant within 30 days after the date he notifies the owner that he wishes to be released.

If an owner ignores an assignment request, the tenant still doesn’t have a right to assign the lease. That’s because the law clearly says that a tenant can’t assign without the written consent of the owner. But, as a practical matter, owners should send written rejection notices to tenants who request permission to assign.

“Reasonable” refusal of request. If you “reasonably” withhold your consent to an assignment request, the law says that “there shall be no assignment and the tenant shall not be released from the lease.” In other words, your reasonable refusal of an assignment request leaves things the way they were before the request was made—the tenant is still bound by the lease.

If you want to bar an assignment but don’t care if the tenant then elects to be released from the lease, simply say “no” in your rejection, without giving a cause. This is an unreasonable rejection, and will give the tenant the option of moving out.

If you want to bar an assignment but keep the tenant, then state a reasonable ground for your rejection. This way, the tenant isn’t released from the lease.

Deceased Tenants’ Estates Can’t Force Sublets or Assignments

Instead of a typical subletting scenario, suppose your rent-stabilized tenant just died. His apartment is now vacant. His lease still has months to go. In this situation, a court-appointed authorized representative of the tenant’s estate is appointed, most likely, the executor of the deceased tenant’s will, who steps in and acts in place of the tenant. The executor asks for your consent to sublet or assign the apartment to one of the tenant’s relatives, or maybe even to himself, instead of giving the apartment back to you. Do you have to agree to the sublet or assignment? No. Here’s why.

A rent-stabilized tenant’s obligation to pay rent doesn’t end with his death. His estate must continue paying rent until the lease ends. To avoid paying rent, the estate (through its executor) may try to sublet or assign the apartment. There’s a special state law (New York Real Property Law §236) designed to help estates by letting them get out of a lease. Under the estate sublet law, an executor can ask for your consent to a sublet or an assignment. If you arbitrarily say “no” or unreasonably refuse the executor’s request, the law provides an escape hatch for the estate: It can end the lease, along with its obligation to pay rent.

But given the value of many rent-stabilized apartments, some executors don’t want to use the escape hatch. Far from it. They truly want to assign or sublet the apartment to the tenant’s relatives of themselves. So they try to get around the estate sublet law and force you to accept a sublet or assignment. But courts have stated that the estate sublet law governs the rights of an estate to sublet. In one case, the tenant died two years before his lease ended. The executor sought the owner’s permission to sublet to the tenant’s relative. The owner refused, and the executor sued to force the owner to allow the sublet.

The executor tried to get around the estate sublet law by arguing that the regular sublet law applied instead. But the executor lost. According to the appeals court, the sublet law applies only to situations where the tenant is alive and seeks to sublet. So, if the owner unreasonably rejects an estate’s sublet request, the executor can’t use the sublet law to force him to accept the subtenant [Wishod v. Kibel, Dec. 1985].

Another appeals court came to the same conclusion. In that case, the deceased tenant’s son was the executor of the estate. He wanted the owner’s consent to assign the lease to himself. The owner refused, but the son and his family moved into the apartment anyway. The owner then sued to evict.

The court said that a lease doesn’t end just because the tenant dies. The lease passes as personal property to the estate. An executor has the right, until the lease ends, to keep the apartment “in his capacity as representative of the deceased tenant’s estate.” But, the court emphasized, the executor doesn’t have the right to sublet or assign the lease: “A residential lease is not a property right . . . to be passed from one generation to the next.”

The court concluded that the son, as executor, had broken the lease by allowing someone—namely, himself and his family—to move into the apartment without the owner’s consent, as the estate sublet law requires. The court said this was a “substantial breach,” and the owner could evict the son.

The court also said the son had no right to a renewal lease, as he was claiming. “A family member who takes occupancy after the death of a tenant has no right to a renewal of the lease” [Joint Property Owners, Inc. v. Deri, January 1986].

You never have to let a deceased tenant’s estate sublet or assign the apartment, if you don’t want to. The estate sublet law gives you complete control in such a situation. All you must do is respond to the estate’s sublet request by the required deadline.

If the executor ignores you by either moving in or letting someone else move in, sue the estate right away for illegally subletting. When a tenant dies, it’s not open season for the executor to move in.

Editor’s Note: It’s important to distinguish a deceased tenant’s estate trying to force acceptance of a sublet to a deceased tenant’s family member from family member succession rights allowed by law. For rent-stabilized and rent-controlled apartments throughout New York State, a “family member” of the tenant may have the right to a rent-stabilized renewal lease or protection from eviction in an apartment under rent control when the tenant dies or permanently leaves the apartment. A family member has the right to a renewal lease or protection from eviction if he or she resided with the tenant as a primary resident in the apartment for two years immediately prior to the death of, or permanent departure from, the apartment by the tenant. The family member may also have the right to a renewal lease or protection from eviction if he or she resided with the tenant from the inception of the tenancy or from the commencement of the relationship. If the family member trying to establish succession rights is a senior citizen or disabled person, then the minimum period of co-occupancy is reduced to one year.

Responding to Sublet or Assignment Request

Getting a sublet or assignment request from the executor of a tenant’s estate is very advantageous to you. By making the request, the estate puts you in the driver’s seat. All the choices are now yours. You have several options to choose from, including the right to end the lease if you wish.

The estate sublet law spells out your rights. Here’s what the law says.

How request must be made. First, the executor must make his sublet or assignment request in a specific way. It must be in writing. It must give the name and business and home address of the proposed subtenant or assignee. And the request must be sent to you by registered or certified mail, return receipt requested. If you want more information, you have 10 days after the executor mails the request to ask for it.

Your three options. You have three options in responding to the sublet or assignment request:

Option 1: End the lease. You have the right to simply end the deceased tenant’s lease. If you choose this option, the tenant’s estate has no further obligation to pay rent. The obligation ends as of the last day of the calendar month during which you had to respond to the sublet or assignment request. You can then re-rent the apartment to a tenant of your choice.

How do you exercise your right to end the lease? Send the tenant’s executor a letter by registered or certified mail, return receipt requested. Be sure you meet the deadline for responding.

Here’s a sample letter:

Re: [insert address of apartment]

Dear [insert name of executor]:

We have your request for our consent to [pick one: assign the lease for or sublet] the referenced premises.

In accordance with the Real Property Law Section 236, please be advised that such consent will not be given, and that the undersigned elects to terminate the lease for the referenced premises in accordance with the terms of the Real Property Law. The lease shall be deemed terminated on [insert date], the last day of the calendar month during which the undersigned was required to exercise its option to so terminate the lease.

Very truly yours,

[Landlord’s signature]

Option 2: Refuse your consent. Instead of ending the lease, you can simply say “no” to the sublet or assignment request. The consequences of saying “no” depend on whether your refusal was reasonable or unreasonable.

If your refusal is reasonable, the lease continues, and the tenant’s estate continues to be liable for rent until the lease ends.

If your refusal is unreasonable, the lease ends. The tenant’s estate has no further obligation to pay rent as of the last day of the calendar month during which you had to respond to the request. This puts you in the same position as Option 1.

You’d probably choose Option 2 only in the unlikely event that you want to refuse the request but hold the estate liable for rent until the lease ends (instead of ending the lease). If that’s your aim, make sure your refusal is reasonable. If it isn’t, the lease ends and the estate has no further obligation to pay rent. Also, make sure you send your refusal to the executor by either registered or certified mail, return receipt requested.

Option 3: Consent to request. Although this is probably your least desirable option, some owners may decide to permit the sublet or assignment. If you choose, the estate can sublet or assign the lease. But the estate remains liable for rent until the lease ends.

If you choose this option, you may open yourself up to more troubles. For one thing, if you agree to an assignment, a court is likely to rule that the assignee can renew the lease in his or her own name when the lease ends.

Also, even though subtenants have no right to a renewal lease, it could be difficult to get them out once they move into the apartment. You may have to resort to expensive and time-consuming eviction procedures if a subtenant refuses to move out when the sublet ends.

Ultimately, it’s probably best to end the lease. Then, you can choose the new tenant and utilize a vacancy lease allowance when you re-rent the apartment.

Time to act. Whatever option you choose, you must notify the person who made the request within 30 days of the later of these two dates:

1. The date the request was mailed to you; or
2. The date you asked for more information.

You must send your response by registered or certified mail, return receipt requested.

Responding in time is very important. If you don’t respond in time, you’ll lose your right to end the lease; it’s assumed that you’ve consented to the sublease or assignment. That could get you stuck with an unwanted subtenant or assignee.

Estate Sublet Law

Here’s the text of the New York estate sublet law.

New York Real Property Law §236: Assignment of lease of a deceased tenant

Notwithstanding any contrary provision contained in any lease hereafter made which affects premises demised for residential use, or partly for residential and partly for professional use, the executor, administrator or legal representative of a deceased tenant under such a lease, may request the landlord thereunder to consent to the assignment of such a lease, or to the subletting of the premises demised thereby. Such request shall be accompanied by the written consent thereto of any co-tenant or guarantor of such lease and a statement of the name, business and home addresses of the proposed assignee or sublessee. Within ten days after the mailing of such request, the landlord may ask the sender thereof for additional information as will enable the landlord to determine if rejection of such request shall be unreasonable. Within thirty days after the mailing of the request for consent, or of the additional information reasonably asked for by the landlord, whichever is later, the landlord shall send a notice to the sender thereof of his election to terminate said lease or to grant or refuse his consent. Landlord’s failure to send such a notice shall be deemed to be a consent to the proposed assignment or subletting. If the landlord consents, said lease may be assigned in accordance with the request provided a written agreement by the assignee assuming the performance of the tenant’s obligations under the lease is delivered to the landlord in form reasonably satisfactory to the landlord, or the premises may be sublet in accordance with the request, as the case may be, but the estate of the deceased tenant, and any other tenant thereunder, shall nevertheless remain liable for the performance of tenant’s obligations under said lease. If the landlord terminates said lease or unreasonably refuses his consent, said lease shall be deemed terminated, and the estate of the deceased tenant and any other tenant thereunder shall be discharged from further liability thereunder as of the last day of the calendar month during which the landlord was required hereunder to exercise his option. If the landlord reasonably refuses his consent, said lease shall continue in full force and effect, subject to the right to make further requests for consent hereunder. Any request, notice or communication required or authorized to be given hereunder shall be sent by registered or certified mail, return receipt requested. This act shall not apply to a proprietary lease, viz.:  a lease to, or held by, a tenant entitled thereto by reason of ownership of stock in a corporate owner of premises which operates the same on a cooperative basis. Any waiver of any part of this section shall be void as against public policy.