Will we be a legal tenant?

[roberta]

My boyfriend and I have been subletting a rent stabilized apartment from the tenant. The tenant will probably be evicted soon for non-payment of rent. We would like to stay in this building so the LL has offered to let us stay on a month to month basis, without a lease, until a similar apartment becomes vacant. We could then move in to that one, but it would be at a rent which is two or three hundred dollars more than this one because this one has a rent which is significantly below market. The higher rent would not be a financial problem because we can afford it. And I think the other apartment would not be stabilized.
My question is this: Will the mere fact that we pay the LL rent, even without a lease, make us tenants in this apartment with all the rights of rent stabilization? Should we ask for at least something similar to a written sublet agreement?

[TenantNet]

There's the legal answer and non-legal answer. As the unit is stabilized, legally there must be a lease. But in reality, things like that happen all the time ... until there's a complaint.

The new unit - as you say - would be market rent because the LL tells you that it is. You can challenge that because many/most market rents have been illegally deregulated, but not until a) you've done the homework and b) you are in occupancy with a lease. Before you move into the new unit, just be quiet about things and don't ask too many questions.

As for your question, to which apartment do you refer? You say you are subletting, that does not give you tenancy rights. However once the LL evicts the prime tenant and you take over, then in our opinion, yes, you likely would have some tenancy rights even if a RS lease has not been signed. And I think you would have rights pursuant to rent stabilization.

However, if you plan on getting the second unit, then you might not want to assert your RS rights (if any) to the first unit.

The LL might be willing to give you a month-to-month agreement, but that should not rump any RS rights.

If you do decide to assert RS rights, I would consult with an attorney who know DHCR procedure.

[roberta]

So let me clarify and ask you if I understood you correctly.
We would rather stay where we are than move to another apartment.
So you're saying that once we pay the rent, even without a lease, you think that we become rent-stabilized tenants, with all the rights that entails. Do I understand you correctly?

[TenantNet]

It gets complicated, especially as you are now a sublet. (you didn't say if the sublet was legal or not, but I don't know if that matters).

In general, if you reside in an apartment, pay rent in your own name and the LL accepts the money as rent, that can be argued that a landlord/tenant relationship has been created. Also, if you live in a RS unit for more than 30 days, you should be able to ask for a RS lease.

I'm saying you have a point worth arguing, but there might be points favoring the LL as well. I would get an attorney consultation on this. But either way, if you go forward asserting RS status, be prepared for a fight. And remember, there are legal issues in this, but a lot would depend on what happens and when it happens.

[BubbaJoe123]

Couple of questions:

1. The landlord will presumably argue that, if you become the tenant of record in your current apartment, that's a vacancy change, entitling him to a vacancy increase. Do you know how much the current legal rent on the apartment you're currently occupying is? Not what you're paying, but what the primary tenant is paying. If it's over $2250, then the apartment would be removed from stabilization upon a vacancy.*
2. Are you paying the LL the rent directly, or are you paying the primary tenant?

*If the primary tenant is paying a preferential rent, then the picture gets more complicated, given the law changes this year.

[TenantNet]

Bubba has a point, but the counter-point is that when the subtent asserts their RS status, they would already be in occupancy, precluding a vacancy increase.

The LL would likely have to do a variety of upgrades to take the rent above the trigger. Even if this were to happen, the new rent law allows deregulation for the subsequent tenant, not the tenant in occupancy at the time when the increase occurs. In other words, deregulation does not occur on a vacancy anymore, but on the subsequent tenancy.

The trigger amount is $2700, not $2250 for high rent deregulation.

[BubbaJoe123]

Again, the key question is whether the subtenant becoming the primary tenant would be considered a new lease, or a continuation of the old one. If the old one, you're right. If a new one, then the LL would get the 20% vacancy increase (assuming the rent being charged the primary tenant was the full legal rent, not a preferential rent).

You're absolutely right on the $2700, had a brain failure there.

[TenantNet]

It's not a key question, or any question. A sublet has no lease with the LL. Any arrangement the OP has with the LL will be a new lease (or they might view it as a M2M). It can't be a continuation as there was no old lease with the OP (only with the former prime tenant). The only way for that scenario to occur would be with an assignment.

But one way around that I could see is if the OP came on board as a tenant for several months (they would view it as a M2M). If the tenant then demanded a RS lease, there might be an arugment against things like IAI, vacancy surcharge and the like. But there would likely be a fight.

[BubbaJoe123]

I'm inclined to think it would be viewed as a vacancy lease as well, and hence eligible for the increase, but one could make the argument that, if the landlord had been accepting rent directly from the subletter (unclear from the original post whether that's the case, but it sounds like it is), with at least the tacit approval of the primary tenant, the landlord had agreed to a de facto assignment of the lease to the subletter.

[roberta]

Well, the LL has finally evicted the tenant.
In answer to some questions:
We were paying the rent to the subtenant, in accordance with the sublease. After six months, the LL told us that the tenant was keeping the rent and not giving it to the LL. We confirmed this with the tenant, who claimed that she kept it because she "needed the money". At that point the LL began a non-payment suit against the tenant. We stopped paying the subtenant and offered to pay the LL directly but the LL said to hold off until the tenant is evicted.

So we now owe the LL a year of rent. We know the legal rent, which is what we were paying to the subtenant (plus 10%) for six months. We now owe the LL 12 months at that rate with no surcharge. The LL says that we will then go on a M2M basis with a monthly rent of the current legal rent + 18% with no lease. When an apartment in the building becomes vacant, and the apartment itself is acceptable to us, the LL says we can have it but it will be two or three hundred more than the new rent we will be paying here. (The new legal rent of our current apt, which is what we would be paying, is nowhere near the deregulation threshold).

We like the location, the building, and the LL. We can easily afford the rent of another apartment. Vacant apartments are rare in this immediate neighborhood and are taken quickly.
So my impression is that, in answer to my original question, that we could assert RS tenant rights to this apt if we choose to. And the LL could put up a fight. However, as I said, we
like the building and the LL, would like to maintain a good relationship, and don't mind paying more for another apt as long as it is acceptable to us. So I guess it's our choice.

[TenantNet]

I haven't gone back and re-read all the previous posts, so I can only respond to this latest post. Also, I haven't seen and can't respond to anything that happened in the court case.

But first. I would say it's 98% that you do not owe the LL a year of rent. He took the original tenant to court and probably got a judgment for both possession and for the back unpaid rent. YOU do not owe that rent and YOU would be crazy to pay it. Seriously.

The prime tenant owes the LL the rent, not you.

The only exception - which you do not make clear - is that if you stopped payment to the old tenant, then I could see the LL claiming you owe that to him. Even that is a stretch legally. If the unit is RS, then I would question the legal rent + 18% for the same unit you are now living in.

You don't have succession rights to the unit you now have. But there might be an argument if you've been paying rent to the LL for a while - in your own name - that you have established a LL-tenant relationship and that might give you rights to the unit. Of course that can get complicated and I would consult with a tenant attorney.

What you do have now is possession (did the court case rule against you as "John Doe's" occupying the unit?). ANd because you are in possession, you have leverage to negotiate.

[roberta]

We've never paid the LL a penny in rent. We have been living here rent free for a year, with the understanding that when the LL gets possession of the apt, we would pay all the back rent to the LL and the LL would let us stay until a desirable apt becomes available in the building.
The tenant has no assets (she was on public assistance) and will not ever pay the back rent. If we don't pay a year's rent we will simply be evicted.
We're not looking for a fight. We just would prefer to stay in the building. We don't mind moving to another apt even if it's more rent (which it will be). We just would like to know that in the unlikely situation, no apt which we like becomes available, do we have the legal right to stay in this one as an RS tenant? You seem to say possibly but with a fight.

[TenantNet]

You never paid the LL rent, but did you pay rent to the original tenant? That was your obligation, to the tenant, not to the LL. Seems the LL knows the tenant he just evicted is "judgment proof" and is seeking to sidestep the court by making you responsible for his lost rent. In our view, that's not legal.

What matters is what happened in court, not any understanding. Were you listed on the petition as John or Jane Doe? How did the case end? Was there a stipulation? Was there an judgment of possession? Did a judgment also include back rent and from whom?

I can tell you that tenants who rely on "understandings" are the first to get screwed.

If you had paid rent to the LL, you might be in a better position now as the LL's acceptance of rent could be a claim that a LL-Tenant relationship existed btw you and the LL.

"If we don't pay a year's rent we will simply be evicted." Not necessarily. That depends on a number of things (including the court case as I outlined above), but you do have possession - at lease now.

I understand you're not looking for a fight, but how much are you looking to get screwed? You're not being promised the unit you are now in, correct? The LL promised you some other unit - maybe - at some jacked-up rent.

And do you have that on a legally-binding document? The only way to be a real RS tenant in the current unit is for the LL for offer you a RS lease.

You can claim you have the right to the current apartment, but it might take a fight. I would ASAP consult a good tenant attorney (a real tenant atty, not just any lawyer from down the block who is also an ambulance chaser and immigration lawyer) who can look at the court case and whatever documents you have.

[BubbaJoe123]

So, wait, you WEREN'T paying rent to the primary tenant? If so, unless there's some sort of documentation where you and the owner agreed that you'd pay him the back rent once the primary tenant's eviction went through, the owner has no claim on you. The owner has a claim on the primary tenant, and the primary tenant has a claim on you.

[TenantNet]

It depends on what occurred in the court case.