Tenant’s Privacy Rights
Tenants have the right to privacy within their apartments. However, landlords may enter with reasonable prior notice and at a reasonable time: (a) to provide necessary or agreed upon repairs or services; (b) in accordance with the lease; or (c) to show the apartment to prospective purchasers or tenants. In emergencies, such as fires, the landlord may enter the apartment without prior notice of tenant’s consent. A landlord may not abuse the limited right of entry or use it to harass a tenant. Landlords are restricted in dictating who tenants may allow to occupy the apartment. Tenants are protected by discrimination, occupancy and subleasing laws. The New York State Human Rights Law prohibits landlords from asking prospective tenants questions or using application forms that directly or indirectly suggest discrimination on the basis of marital status, sexual orientation, sex, familial status, as well as race, creed, color, national origin, military status, age and disability.
A landlord may ask: “How many people will occupy the premises?” However, it is considered discrimination on the basis of familial status to ask: “Do you intend to have children?” “Will children be living in the unit? If so, the ages and gender of the children?” The landlord may not require an applicant to bring his or her family to an interview or to provide a photograph of his or her family. It is considered to be discrimination on the basis of marital status if the landlord asks: “Are you married, single, divorced or separated?” It is illegal to require the applicant to produce any document revealing marital status.
SEX AND SEXUAL ORIENTATION
Inquiries as to sexual orientation are prohibited. The landlord may not ask: “Are you married or single?” “Do you have a girlfriend/ boyfriend?” A landlord discriminates on the basis of sex if he requires submission of any document that would reveal an applicant’s gender, or asks about pregnancy, capacity to reproduce, use of birth control or family planning. Sexual harassment is considered a form of sexual discrimination.
UNLAWFUL RESTRICTIONS ON OCCUPANCY
A landlord may not restrict occupancy of residential premises to a tenant and his or her immediate family. Any lease or rental agreement entered into by one tenant shall be construed to permit occupancy by the tenant, immediate family of the tenant, one additional occupant and dependent children of the occupants provided that the tenant or his/her spouse occupies the premises as his/her primary residence. Any lease or rental agreement entered into by two or more tenants shall be construed to permit occupancy by the tenants, immediate family of the tenants, occupants and dependent children of the occupants. However, the total number of tenants and occupants, excluding the occupant’s dependent children, may not exceed the number of tenants specified in the current lease or rental agreement, and at least one tenant or a tenant’s spouse must occupy the premises as his or her primary residence. The landlord may limit occupants in order to comply with federal, state and local laws, regulations, ordinances and codes, including housing codes, health codes and zoning restrictions on overcrowding. Any provision of a lease or rental agreement, whereby the tenant waives these rights is null and void. Tenants may sue landlords who violate their rights for an injunction to enjoin and restrain such unlawful practice, actual damages sustained as a result of the unlawful practice and court costs.
Subleasing and Assignment
Landlords of residential dwellings of four or more units, other than public housing or cooperative apartment buildings, cannot unreasonably withhold their consent to assignment or subleasing of the apartment by the tenant. However, the tenant must obtain the written consent of the landlord before subleasing or assigning.
An “assignment” of the lease transfers the entire unexpired balance of the lease term to another person. “Subleasing” is renting out for part of the lease term. A tenant would sublet his apartment lease, rather than assign it, if he planned on returning to it before the expiration of the lease term.
The tenant must inform the landlord of his intent to sublease or assign by mailing a request to the landlord by certified mail, return receipt requested. The request must contain: the term of the sublease, the name of the proposed sublessee, the business and permanent home address of the proposed sublessee, the tenant’s reason for subletting, the tenant’s address for the term of the sublease, the written consent of any co-tenant or guarantor of the lease, and a copy of the proposed sublease, to which a copy of the tenant’s lease shall be attached if available, acknowledged by the tenant and proposed subtenant as being a true copy of such sublease.
Within ten days after the mailing of the request, the landlord may ask the tenant for further information in order to determine whether or not rejection of the tenant’s request will be unreasonable. Within thirty days after the tenant mails the request,or within thirty days after the landlord requests additional information (whichever is later), the landlord must notify the tenant of his consent or his reasons for not consenting. If the landlord neglects to send such a notice, he is considered to have consented to the proposed subleasing or assignment.
If the landlord consents, the apartment will be sublet or assigned in accordance with the request, but the original tenant still remains liable for his obligations under the lease such as for payment of rent. If the landlord unreasonably withholds his consent, the tenant may either: request that the landlord release him from the lease or sublet in accordance with the request and recover the costs of the proceedings and attorney’s fees if it is determined that the landlord acted in bad faith by withholding his consent. If the landlord reasonably withholds his consent, there shall be no subleasing and the tenant shall not be released from the lease. Any provision of a lease or rental agreement whereby the tenant waives his right to assign or sublet is null and void. A tenant may sublet to an immediate family member who has extensive occupancy ties to the apartment without obtaining the landlord’s consent.