Q: I own a co-op in a Hell’s Kitchen building. We are allowed to sublet our apartments for two years. I am considering this, but I wonder how I can protect myself from a tenant claiming that the apartment is now their permanent residence. I had a terrible situation recently with squatters in my deceased father’s apartment and do not want to take that chance with my co-op. Any advice is greatly appreciated.
A: In a situation like this one, your subtenant would not develop rights to stay after the lease ends, because they would not be protected by New York’s rent stabilization law, nor its good cause eviction law.
But, if your tenant refused to leave at the end of the lease, forcing them out could be a lengthy, expensive process — and one you should consider before you rent out the apartment.
“The bottom line is, if you do this, you are a landlord and then you have all the problems that small landlords have, but without access to the resources that landlords have,” said Michelle Maratto Itkowitz, a real estate lawyer in Brooklyn and host of the Tenant Law Podcast. “In other words, you are taking a risk.”
In New York City, you can’t perform an eviction on your own. Only a marshal with a warrant of eviction from a court can do that. You would have to file a lawsuit to remove your subtenant from the apartment. This would typically be a summary proceeding for the recovery of real property, brought in New York City civil court, Ms. Itkowitz said.
There are two types of summary proceedings — one if your tenant isn’t paying, and another if they won’t leave. These cases can take a year to resolve. In some circumstances, the subtenant wouldn’t have to pay rent while the case is ongoing, though the landlord could win that rent back at the end of the case.
You also have to consider the potential consequences with your co-op board and management in the event your subtenant fails to vacate. Will they charge you extra, or take steps to terminate your shares?
It might seem backward, but if your subtenant won’t leave, you could propose an incentive, such as forgiving unpaid rent, to get them to go.
“I tell small landlords all the time: You are so much better off paying a tenant for certainty of result than you are paying a lawyer to roll the dice in the court system,” Ms. Itkowitz said.
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