Illegal Sublet Notice to Cure Prime Tenant

[McDowell]

I am the prime tenant. I have been subletting, illegally, for the past ten months. No overcharge. I still live in NYC and thus I am an 'illusory tenant.' Rent is paid to date. Utilities are in my name. I was served the Notice to Cure on 1/17 which stated I had until 2/3 to 'cure' it or the LL will serve me a notice of termination and thereafter bring the appropriate summary hold-over proceeding from my removal from the premises. However, I just picked up the certified letter containing the Notice today, 2/5, as I have been out of town on biz. Three other certified letters were sent back as I was not here to pick them up. I don't mind losing the apartment, per se, but the person subletting is a friend and at the very least, in the worse case scenario, I'd like to give him more than the 10 days to get out should it come to that. However, I'd at least like to try to remedy the situation before it comes to that. Also, I don't want, nor can I afford, to pay attorney's fees and the remainder of the rent on the lease (11 mos) Contacting a lawyer is something I think I should do but does anyone on this forum have any advice or suggestions? Should I play dumb and tell the LL I will submit the proper paperwork? Tell him I'd like to assign the lease to the sublettor? I have no idea what is best. Thanks for any advice anyone can give me.

[Lilly]

First of all 10 months does not make you the
illusory tenant. An illusory tenant is one who has never been in possession of the apartment, or at the very least has not maintained it as his/her primary residence for at least 2 years.

What did the LL serve you with? Illegal sublet or non-primary residence?

An illegal sublet you can cure by moving back into the apartment.

Contact the LL tell him you just received the papers, or better yet go to housing court (111 Center Street, 2nd floor in you're in manhattan) and bring the papers with you. Ask one of the clerks at the desk to pull the file. Copy said file. Bring lots of quarters. Depending upon what you find, let us know.

[Chimera]

I still live in NYC and thus I am an 'illusory tenant.'

It does not appear that McDowell travels for business, but rather that he is renting a seperate apartment in NYC while illegally subletting his rent-regulated apartment to a friend.

McDowell: If you let this slide, you will lose the apartment (which you don't use anyway), but your friend will get more than 10 days to move out. If the situation isn't cured within 10 days, the landlord will begin procedures to take the apartment back, it does not end in the instantaneous eviction of your friend.

<small>[ February 06, 2003, 10:33 AM: Message edited by: Chimera ]</small>

[McDowell]

Thanks to all for your input. I've contacted an attorney and will see him on Monday. Not sure if I'll use him or go ahead with any court-case but I thought it prudent to at least get some legal advice. Chimera, you are correct. I do live in NYC in another apartment. But it is true that I was away on biz when the certified mail was delivered, and thus my lateness in picking it up. However, I am not away all that often and certainly not for any great length of time. This was unusual. Lilly, I was served, via certified mail, a Notice to Cure and the term "illegal sublet" was mentioned and thank you for clarifying what an 'Illusory Tenant' is. I also spoke with a Clerk at Housing Court and was told that as of today, there has been nothing brought against me. However, the next step will be for the LL to file a Notice of Petition, etc. Since I don't really have any desire to move back into the apartment in order to cure it, losing it won't keep me up at night. I was, it seems naively, trying to do my friend a favor by giving him a place to live, in a great location, for cheap (ish) rent. My focus, and concern, will be to hopefully get the LL to allow my friend to take over the lease. Since the rent there is pretty low and other "renovated" (LL's term) apt's in the building are going for mucho more, my gut tells me he'll want my friend out in order to renovate and thus raise the rent. Still, I'm hoping there's some way I can legally get my friend to take on the lease. I'm continuuing my research on this site and other sites as well and really appreciate the feedback/help I've received thus far. If anyone wants to chime in and give me more advice (or even admonish me for my stupidity...but please do it kindly!) I won't stop you! As you can tell, I'm a little ignorant about these things. Thanks again. I will keep you posted as to what transpires in the coming days.

<small>[ February 06, 2003, 06:20 PM: Message edited by: McDowell ]</small>

[McDowell]

Met with an attorney who says friend has got to go and there's no way the LL is going to sign over the lease to him. Since moving back in and/or becoming roommates with Friend are not what I want to do, Attorney says we can do one of two things: 1) negotiate with LL saying I'm willing to surrender apt and hope LL says ok in which case I may or may not receive my deposit back and or I may or may not get any other monetary compensation (i.e. a "buyout") Attorney says there is no guarantee. Attorney fee: $750. Or 2) we go to court. Not to keep the apt but to try harder to get LL to return deposit plus some kind of buyout. Attorney says we would have more leverage in court but again, no guarantee. Attorney fee: $3000 retainer. When I went to see Attorney, in addition to bringing files, I brought photographs of repairs I had asked for in my 9 years living there but had never received. He said we could use this as leverage in court in order to get LL to settle quickly and with no additional penalties (LL's attorney's fees, rent for balance of lease, etc) Also, LL is large Mgmt. Co that owns many many buildings. Attorney was familiar with LL. Of course Attorney wants to go to court as this is more money in his pocket. I will see him again on Thursday and let him know my decision (I am leaning to #1 as I just want the least amount of hassle for the least amount of cost) Thoughts or questions anyone?

[Cranky Tenant]

I'm not an attorney but, since you're not living in the apartment I doubt you would have much leverage for a buy-out. If the LL can prove this in court he's pretty much won his case.

I'm not even sure Housing Court has the authority to force the LL to return your deposit. These matters are often handled in Small Claims Court especially when the tenant no longer lives in the apartment.

If your real concern is with getting your deposit back, you might want to suggest a meeting with the LL where you would sign over rights to the apartment and he would refund your deposit, in cash, on the spot. That way you'd both save a fair amount in legal fees.

[McDowell]

Thanks Cranky. My gut tells me I won't get anything back as you suggest. Please note this is not what I'm hoping or going for. I simply want to end the situation in the easiest way for both LL and myself. And for my friend who currently lives there. Naturally, I despise the LL and the situation (and I fully admit it is my own fault I am in the position I am in) and if I could afford to fight to the bitter end I would. I have done much research on the LL and his subsequent DBA's and he is well known as being notorious. Again, as per my first post, I am more concerned about my friend, whom I need to inform that he has to move out in about 30 days. I will give him back the deposit I asked from him as well as another grand to help him out and alleviate my guilt. Also note I was told by Attorney not contact the LL myself as LL would consider this a sign of "weakness" and thus go for my throat. In other words: having a legit attorney contact them would make LL believe I was willing and able to fight and thus more likely that they will settle (even without any monetary compensation) without going to court.

[Cranky Tenant]

If you're not interested in moving back into the apartment then I think you really need to consider how much time, and how much money you're willing to pay persuing this.

I don't feel telling the LL you're willing to terminate the lease in 30, 60 or 90 days, at which time he's to refund your deposit in cash, would be intepreted as a sign of weakness, but it's really your choice.