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MIAMILAW1127
MIAMILAW1127, Attorney
Category: Landlord-Tenant
Satisfied Customers: 731
Experience:  Founding Partner at Moises Law, P.A.
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I'm living with my boyfriend in NYC. He also has a place in

Customer Question

I'm living with my boyfriend in NYC. He also has a place in Brooklyn that he owns. We were just served papers that I am subletting and must leave, because the super who lives off site has not seen him in months. I have seen the super once in 7 months, because he only comes to occasionally and sporadically. My boyfriend is an Oscar nominated film maker and I own 3 national magazines. We are pretty solid people. She's telling me I need to leave in 10 days for subletting the apartment illegally. He gets his mail here, lives here when he's not on location filming and we both travel constantly. It feels like harassment and stalking into our lives. There is no onsite super, doorman or anyone from management here regularly. How would they know about our personal lives. It is rent controlled, so if they get us out, they can raise rent.
Submitted: 1 year ago.
Category: Landlord-Tenant
Expert:  MIAMILAW1127 replied 1 year ago.

Hello. Thank you for contacting me. My name is***** am a consultant here and I am looking forward to assisting you with your question. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Please be patient as I will be typing my responses to you from scratch. Also, I can only answer/address the questions you ask specifically based on the information your provide. Please try to provide as much information as possible so I can best assist you.

Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

Expert:  MIAMILAW1127 replied 1 year ago.

I have a question for you that will help clarify the situation for me. By the sound of it, pursuant to your lease agreement you are not permitted to sublet your apartment, right?

Customer: replied 1 year ago.
correct. We are in Manhattan. Are you in Florida? We need a NYC attorney. This just answer is totally sketchy and keeps asking us for more money with no answer.
Customer: replied 1 year ago.
It is his apartment and we are living together and they are saying that I am subletting because they haven't seen him here.
Customer: replied 1 year ago.
Can you please answer. It has already charged us.
-Maranda
Expert:  MIAMILAW1127 replied 1 year ago.

Yes. Please give me a moment as I am typing.

Expert:  MIAMILAW1127 replied 1 year ago.

The first thing you have to do is take a look at his lease and make sure that there isn't any language that would bar an additional person living in the unit. A lot of times, leases have language in them that ask if the tenant would be the only person living in the unit and landlords tend to get bent out of shape when they have someone that resides at the property long enough to not fall under the definition of a guest.

That being said, if the lease doesn't have language preventing an additional person from moving in, your next step (if you haven't done this already) is to sit down with the landlord and prove to them that you are not subletting as you are not a subtenant, but a co-tenant. The way you can go about proving this is if you still maintain a separate residence, receive mail elsewhere, prove who pays the rent (for example, if only your boyfriend pays the rent you cannot be considered a subtenant), prove that there is no lease between you and your boyfriend, etc.

The only issue is if you are there full-time, the landlord will try to make your life impossible as they currently are. Your boyfriend could let her know that she is interfering with the quiet enjoyment of the property.

Here is the applicable statute: It is unlawful for a landlord to restrict occupancy of an apartment to the named tenant in the lease or to that tenant and immediate family. When the lease names only one tenant, that tenant may share the apartment with immediate family, one additional occupant and the occupant’s dependent children, provided that the tenant or the tenant’s spouse occupies the premises as their primary residence.

When the lease names more than one tenant, these tenants may share their apartment with immediate family, and, if one of the tenants named in the lease moves out, that tenant may be replaced with another occupant and the dependent children of the occupant. At least one of the tenants named in the lease or that tenant’s spouse must occupy the shared apartment as a primary residence.

A tenant must inform the landlords of the name of any occupant within 30 days after the occupant has moved into the apartment or within 30 days of a landlord’s request for this information. If the tenant named in the lease moves out, the remaining occupant has no right to continue in occupancy without the landlord’s express consent. Landlords may limit the total number of people living in an apartment to comply with legal overcrowding standards. Real Property Law § 235-f.

Customer: replied 1 year ago.
this doesn't answer the question. this is off of google. I found this online before I paid you.
Expert:  MIAMILAW1127 replied 1 year ago.

The statute is off the New York Real Property Law word for word. The rest of the explanation I gave you I wrote myself by hand which is why it took so long to reply.

Basically, the answer to your question is that if you are staying there full-time, the landlord could make the argument that you are subletting. However, the way you combat that is by asserting the statute I referenced. Even though your boyfriend is the only named tenant, they are permitted to share the apartment with one additional occupant as long as you are occupying the property as your primary residence.

That being said, the way that the landlord probably knows about this without visiting the building is because someone from the building probably told them (i.e. another resident). The landlord must have someone there keeping an eye on things especially if he/she rarely visits the property.

If this doesn't answer your question, please let me know so I can continue to work with you to assist you.

Expert:  MIAMILAW1127 replied 1 year ago.

The following link has an article which will also assist you: http://www.stroock.com/siteFiles/Pub237.pdf

Expert:  MIAMILAW1127 replied 1 year ago.

As you can see from the applicable statutes and case law, the emphasis is placed on the monetary benefit your boyfriend receives from you being there (potentially creating a subletting situation) and, mainly, where the unit is your primary residence (which works to circumvent the subletting issue).

Expert:  MIAMILAW1127 replied 1 year ago.

If I have answered your question at this point, please rate my response.

If not, please respond so I can further assist you.

Thank you.

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