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Sublet takeover

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Sublet takeover

Postby IBindi » Sat Jun 22, 2002 11:15 pm

I have been living in an illegal sublet for five years and paying considerably more than the lease requirement to the leaseholder. Can I take over this lease. Do I have any legal rights.

Thanks for any info.
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Re: Sublet takeover

Postby MikeW » Mon Jun 24, 2002 2:59 pm

The principle you want to explore is called Illusory Tenancy. There's a lawyer who sometimes posts on here who brought it up, but I've never seen it mentioned anywhere else. It might be worth doing a consult with a landlord-tenant lawyer to see if you could use this to take over the lease.

While you're at it, talk to the lawyer about suing the prime tenant (the person who sublets you the apartment) for triple damages on the overcharge.
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Re: Sublet takeover

Postby IBindi » Mon Jun 24, 2002 7:05 pm

Thanks for the info. I did some research online and that looks like a possibility. Can anyone recommend a good lawyer for me to work with on illusory tenancy?
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Re: Sublet takeover

Postby MikeW » Thu Jun 27, 2002 12:39 pm

The one I've heard a lot about is Colleen McGuire. She advertises on this board, and there should be a link somewhere. She's been quoted in the Times fairly often, and won a big case in federal court relating to how lawyer are used to collect back rent and do evictions. I haven't used her personally, and she might be expensive. I would think she'd be worth a call
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Re: Sublet takeover

Postby IBindi » Thu Jun 27, 2002 2:47 pm

Thanks again Mike. I did speak to a lawyer this week (for free !) and she said that illusory tenancy would be my defense once eviction proceedings commenced. Until they try to evict me I can't do anything. She did also say that I could sue the leaseholder for all the overcharges I have paid over the years. I don't want to do that however. I will post details of whatever happens on the board as I think its a fantastic resource for renters.
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Re: Sublet takeover

Postby MikeW » Thu Jun 27, 2002 4:49 pm

I would get a second opinion, if for no other reason than to mollify my curiosity :) .

I was led to believe that you needed to file an illusory tenancy proceding BEFORE the LL found out about your illegal suble, and filed for an eviction. Once the LL filed I thought is was too late.

Unfortuately, I've never found anything in the statues or cases available on this site that discusses illusory tenancy. What I know is based on some fairly vague posts by a lawyer type person from a while back. If anyone else has any more info, and/or knows where to get it, please post.

<small>[ June 28, 2002, 01:25 PM: Message edited by: MikeW ]</small>
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Re: Sublet takeover

Postby NYHawk » Wed Jul 03, 2002 5:57 am

I am the lawyer folks were referring to who had written on this board a few years back about illusory tenancy. Mike's free legal advice was not worth what he paid for it because he got WRONG advice. Because of the recent change in the Rent Stabilization Code (that if there is an illegal sublet both the prime tenant and the subtenant can be evicted) the illusory tenancy concept has been eliminated by pro-landlord DHCR.
(The concept of illusory tenancy used to protect an "illegal" subtenant, who was deprived of his or her right to being recognized as a rent stabilized tenant because the prime tenant illegally sublet the apartment for profit; in that event, under the illusory tenancy concept the prime tenant was not recognized in the eyes of the law, the subtenant was put in the place of the ousted prime tenant and the landlord had to accept the newly-recognized prime tenant and offer him or her a rent stabilized lease -- even though the landlord may not have known of the illegal subtenancy and may not even have known of the existence of the subtenant.) That is no longer the law!
Even the advice Mike received that he could "sue the leaseholder for all the overcharges [he] paid over the years" is also wrong. There is a 4 year limit on suing (and collecting) for rent overcharges. So the free legal advice was useless. Given the change in the law, if Mike was to raise illusory tenancy as a "defense" the landlord will be able to use the admission that Mike is an illegal subtenant to evict both Mike and the prime tenant. Mike would then have to go ask his free lawyer what went wrong, since he followed her "free" advice and wound up getting evicted. Then he could sue her for malpractice.
Most lawyers are not knowledgeable enough about landlord and tenant law to give proper advice. The suggestion to consult with Colleen McGuire is excellent. She, as the person who writes a weekly piece for this board, who analyzes all relevant landlord and tenant cases as published in the NY Law Journal, certainly knows landlord and tenant law.
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