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Is an illegal sublet agreement enforceable in court?

New York, NY |

I'm an illegal sub-tenant. I want to move out because the apartment is noisy, but the illegal sub-lease agreement extends for seven more months. I'm trying to work out a solution with the tenant who's sub-leasing to me, but he's threatening to bring me to court if I move out early. Is our illegal sub-lease agreement enforceable? Can he sue me for the remaining months' rent?

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Attorney answers 6


Courts do not enforce "illegal" contracts (ex. a mob hit contract). There are equity and "use and occupancy" principles that may be used to collect past rent.

These discussions are not a substitute for a lawyer's investigation and analysis, which are requires for final decisions about the particular rights involved.


No court will enforce an agreement that is illegal.


Assuming you are correct that it is an illegal sublet, the court will not enforce it. Depending on the terms of the sublet, you may even have counterclaims. For instance, if yyou are being overcharged for rent, you could claim treble damages for what you've overpaid. You may want to consult with a landlord tenant lawyer before taking action. Good luck.


I agree with my colleagues. Neither of you can sue on the illegal sub-lease agreement.

Please note that I am answering this question as a service through Avvo but not as your attorney and no attorney-client relationship is established by this posting. An attorney-client relationship can only be established through signing a Fee Agreement and paying the necessary advanced fees.


Dear New York Subtenant:

And what makes your sublease illegal? A court determination?

If you and the tenant have a written agreement that conveyed to you the exclusive possession of the tenant's leased premises, for a defined and specific term, for an agreed rent, and you took possession of the apartment and paid the rent, then as between you and the tenant you have a lease.

If on the other hand, the tenant also lives in the apartment, then you do not have a sublease. You may be a roommate, but for a sublease, you must have rented the entire apartment for your exclusive use and possession.

If you have a sublease and the tenant's landlord has not claimed that the subleasing was made without the landlord's consent or permission or in violation of the tenant's prime lease or in violation of the sublease statute, then as between you and the tenant you have a lease.

If you are a roommate, the tenant does not require the landlord's permission, and the landlord is not allowed to interfere with the tenant's relationship with the roommate.

You claim you want to move out because the apartment is noisy, and not because the "sub-lease" is illegal.

New York Courts will enforce lease agreements that contain unconscionable terms.

New York Real Property Law Section 235-c, forces parties into court for a judicial determination that a lease contains unconscionable terms:

§ 235-c. Unconscionable lease or clause. 1. If the court as a matter
of law finds a lease or any clause of the lease to have been
unconscionable at the time it was made the court may refuse to enforce
the lease, or it may enforce the remainder of the lease without the
unconscionable clause, or it may so limit the application of any
unconscionable clause as to avoid any unconscionable result.
2. When it is claimed or appears to the court that a lease or any
clause thereof may be unconscionable the parties shall be afforded a
reasonable opportunity to present evidence as to its setting, purpose
and effect to aid the court in making the determination.

To the extent a lease contains terms that are void as a matter of public policy, that portion of the lease would not be enforced, but the void or invalid terms do not make a lease "illegal."

So it would behoove you to consult with an attorney, who may review your lease and discuss your legal rights in a confidential setting.

Good luck.

The answer provided to you is in the nature of general information. The general proposition being that you should try to avoid a bad outcome if you can.


One solution would be for you to explain to the tenant renting to you that if he refuses to release you from the sublease amicably, you will have the right to assert counterclaims in court for the implied breach of the lease, such as the breach of the warrenty of habitability. Under NY Law the warrenty of habitability says that a residential renter, like yourself, must be given a place that is habitable to live in. There are many different reasons to assert this claim; noise can be one of them. Depending of how bad the noise is, you might even tell the tenant that you believe you have been constructively evicted. If the tenant moves to sue you anyway, you will want to hire a lawyer. As leverage, your lawyer may even consider getting the landlord involved in the matter, if they, upon a full review of all your documentation conclude that your lease is, in fact, an illegal sublet. In summary, based on what you stated, it is a possiblity you may have a lot of leverage to work with.

This response will not create an attorney-client relationship.

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