Break a lease in condo building

[colin]

I have been relocated to another state. I have 7 months left on a lease on a Manhattan apartment. I rent from the owner in a condominium. I am told that the condo board does not permit sublets.

I have offered to find a new tenant who would sign a new lease, subject to owner and board approval process. When the new tenant signs a new lease I have asked the landlord to release me from my remaining obligations under my lease.

My landlord has not responded to this suggestion. He lives abroad.

What options, if any, do I have?

[TenantNet]

The right to sublet is permitted by law (within the law's parameters and procedures). I don't think it excludes condos or co-ops.

Anna, you know?

Also see http://www.tenant.net/tengroup/Metcounc/Mar96/sublet.html

[colin]

Thanks, I talked to the NY Attorney Generals office regarding this point and they told me that Condos & Coops could refuse to permit sublets – but that seems to make a nonsense of the right to sublet that you mentioned.

Any clarification would be most welcome.

[Anna]

"I rent from the owner in a condominium. I am told that the condo board does not permit sublets. "

1. You have been subletting from condo owner, so obviously the board does not forbid all sublets. Forbidding ALL sublets in coop/condo is legal IF the board has a non-discriminatory reason that satisfies the 'business judgment rule' [see Levandusky and Pullman and decisions citing them: Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530 (NY Court of Appeals 1990) 40 West 67th Street v. Pullman , 100 NY2d 147 (NY Court of Appeals 2003)]. Other examples:

CONDOS NOT FREE FROM SUBLET RESTRICTIONS
In Four Brothers Homes at Heartland Condominium II v. Gerbino, 691 NYS2d 114 (2d Dept. 6/1/99), the bylaws contained a provision-- unusual for a condominium--: that only owners could live in the homes and that the homes could not be leased. An owner argued that the prohibition was a significant restraint on homeowners to fully alienate their property, and that this restraint was unreasonable.The court dismissed this argument, noting that in choosing to purchase a home in a condominium the owner gave up certain rights and privileges, and that this condominium's prohibition on subletting was not unreasonable. The court said here that the condominium could act exactly like a cooperative. This is not a matter of law, but it instead depends on how the offering plan was drafted. And offering plans can be drafted or amended to make a condominium exactly like a cooperative in terms of the rules that are enforced.

SUBLETS
In Rosenberg v. Riverwood Owners, Inc., 756 NYS2d 900 (2d Dept. 4/7/2003), the board had twice denied consent to sublet. The court found that this withholding was reasonable; that it had a legitimate relationship to the welfare of the cooperative. The lesson of this case is that if cooperatives behave in a procedural way and document their decisions, those decisions are likely to be able to withstand challenge.

from: http://www.cnyc.coop/archive-legal.htm

2. Unless the board voted to forbid ALL future sublets, which would effectively prevent the owner of your condo from subletting to a new tenant, neither the board nor your LL [your condo's owner] can prevent you from assigning your lease to a new tenant. [Ts who have no intention of returning to apt are ASSIGNing, not SUBLETing]. Reminder: the time rules for subletting in RPL 226-b(2) do not apply to assigning.

Real Property Law
§ 226-b. Right to sublease or assign.

1. Unless a greater right to assign is conferred by the lease,
a tenant renting a residence may not assign his lease
without the written consent of the owner, which consent may
be unconditionally withheld without cause provided that the
owner shall release the tenant from the lease upon request
of the tenant upon thirty days notice if the owner
unreasonably withholds consent which release shall be the
sole remedy of the tenant. If the owner reasonably withholds
consent, there shall be no assignment and the tenant shall
not be released from the lease.

3. Click Search Forum, search for '226-b ASSIGN': read some.

4. If your job is relocating you [vs if you choose to leave firm], it should pay all relocation expenses such as paying for T-atty to get out of this lease or to defend against suit for unpaid rent after lease expires. Did you ask?

5. "I have offered to find a new tenant ...." In writing?

6. NOTE: SPONSORS [and their successors] in coops/condos may have special rights to rent their units [aka sublet] even if purchasers of individual units do not.

[Anna]

See also Demchick v. 90 East End Ave. Condominium, 18 A.D.3d 383, 796 N.Y.S.2d 62, 2005 [available on Westlaw]

Real Property Law § 339-v (2) (a) specifically allows condominium bylaws to contain "[p]rovisions governing the alienation, conveyance, sale, leasing, purchase, ownership and occupancy of units" so long as those provisions do not discriminate on the basis of race, creed, color or national origin. The bylaws are also subject to the common-law rule against unreasonable restraints on alienation (see Anderson v 50 E. 72nd St. Condominium, 119 AD2d 73 [1986], appeal dismissed 69 NY2d 743 [1987]). "Whether a restraint on the disposition of property is unreasonable is a question of fact depending upon its purpose, duration and, where applicable, the designated method for fixing the purchase price" (Metropolitan Transp. Auth. v Bruken Realty Corp., 67 NY2d 156, 161-162 [1986]).
The restriction on the leasing of studios does not constitute an unreasonable restraint on alienation (see Four Bros. Homes at Heartland Condominium II v Gerbino, 262 AD2d 279 [1999]).

emphasis added

Read this too: http://tenant.net/phpBB2/viewtopic.php?t=4933[/quote]

[Aubergine]

If this is a condominium unit, and the original poster is leasing it from the condominium unit owner, there is no current sublease, only a lease. So I would have to disagree with Anna's conclusion that "obviously the board does not forbid all sublets." The condo might permit leases by unit owners but not permit subleases. However, at least one published form of condominium by-laws I have seen does contain provisions restricting subleasing without board consent, so these provisions are probably common.

Re Demchick v 90 East End Ave. Condominium and RPL 339-v (2) (a), I am not sure that the permissibility of restrictions on leasing in the condominium by-laws -- which are enforceable as a contract between the unit owners -- means that, where leasing is permitted, subleasing can be restricted when the lessee otherwise complies with RPL 226-b. A lessee might or might not be bound by the condo by-laws, and the enforceability of an outright prohibition on subleasing would be questionable in light of RPL 226-b.

Although Real Property Law 226-b does not provide co-op shareholders with the right to sublet, the statute on its face appears to apply equally to mulitfamily condominium buildings. There do not appear to be any reported cases directly addressing the issue, however. In Wofford v Adams, 299 AD2d 249, 250 (1st Dept 2002), the tenant of a condo apartment sought a declaratory judgment that she had the right to sublet or assign the subject apartment pursuant to RPL 226-b. The unit owner denied the tenant's request to sublet, "asserting that a sublease by an owner's tenant to a subtenant would not be allowed under the condominium's policies." The tenant moved out without responding to the unit owner's request for further information about the subtenancy, and as a result the tenant's complaint was withdrawn as moot. The court therefore did not rule on the enforceability of the condo's alleged policy.

In short, I don't know exactly what the law is on this issue, and it may not really be settled enough to give a firm answer.

[Anna]

I inadverdently used the term 'sublet' to describe the relationship between OP and condo owner, probably due to fact that most of these apts in NYC are coops, not condos, and coop owners have proprietary leases & shares, not deeds. OP also misused the term 'sublet' to describe breaking the lease: he will not be subletting, cannot sublet even if condo board allowed it BECAUSE he has NO INTENTION of returning. He can only ASSIGN his lease to another prime tenant or the owner can write a new lease w/ the new tenant.

So: the rewrite:
"I rent from the owner in a condominium. I am told that the condo board does not permit sublets. "

1. You don't want to sublet: you want to assign your lease. You have been leasing from condo owner, so obviously the board does not forbid all leases. Forbidding ALL sublets/leases in coop/condo respectively is legal IF the board has a non-discriminatory reason that satisfies the 'business judgment rule'