107 Misc. 2d 74 | N.Y. App. Term. | 1980
Lead Opinion
OPINION OF THE COURT
Final judgment entered April 3, 1980 is modified to the extent of reducing the award of use and occupancy from $1,426.91 to $1,097.64 and, as so modified, affirmed, with $25 costs.
Tenant’s lease, extended until May 19,1982 by modification and extension of léase agreement, executed pursuant
At one time, leases under which the tenant agreed not to sublet without permission of the landlord and the landlord agreed not to unreasonably withhold such consent were held to create only a negative covenant on the part of the landlord, the tenant’s remedy for landlord’s unreasonably withholding such consent being of limited dimension. Thus, Rasch states (1 New York Landlord & Tenant, Summary Proceedings [2d ed], § 267, p 348) “A qualification of the tenant’s covenant not to assign without consent by the addition of the phrase ‘but such consent will not be unreasonably withheld’, does not bind the landlord to anything” (see Sarner v Kantor, 123 Misc 469). Later authorities in the case of both residential and commercial tenancies, provided the tenant under these circumstances with a host of available remedies including the following: (1) ignoring the refusal and subletting, (2) securing relief through declaratory judgment, (3) an action for damages, (4) an action for specific performance (see cases cited in 1 Rasch, New York Landlord & Tenant, Summary Proceedings [2d ed], § 269; 34 NY Jur, Landlord & Tenant, § 265).
By statute, section 226-b of the Real Property Law, effective June 3,1975, the Legislature dealt with the right to sublease residences “in a dwelling having four or more residential units” when the lease, as in the case at bar, is
“1. A tenant renting a residence in a dwelling having four or more residential units shall have the right to sublease or assign his premises, subject to the written consent of the landlord given in advance of the sublease or assignment. Such consent shall not be unreasonably withheld. If the landlord unreasonably withholds consent for such sublease or assignment, the landlord must release the tenant from the lease upon request of the tenant.
“2. The tenant shall inform the landlord of his intent to sublease or assign by mailing a notice of such intent by registered or certified mail. Such request shall be accompanied by the written consent thereto of any co-tenant or guarantor of such lease and a statement of the name, business and home address of the proposed sublessee or assignee. Within ten days after the mailing of such request, the landlord may ask the sender thereof for additional information as will enable the landlord to determine if rejection of such request shall be unreasonable. Within thirty days after the mailing of the request for consent, or of the additional information reasonably asked for by the landlord, whichever is later, the landlord shall send a notice to the sender thereof of his consent or, if he does not consent, his reasons therefore. Landlord’s failure to send such a notice shall be deemed to be a consent to the proposed subletting or assignment. If the landlord consents, the premises may be sublet or assigned in accordance with the request, but the tenant thereunder, shall nevertheless remain liable for the performance of tenant’s obligations under said lease.
“3. The provisions of this section shall not apply to leases entered into or renewed before the effective date of this section.”
It is not denied that the tenant herein, in requesting of landlord permission to sublet her apartment, complied with all of the procedural requirements set forth in subdivision 2 of section 226-b of the Real Property Law.
Section 226-b appears modeled upon section 236 of the Real Property Law, which provided for the release from
Subdivision 1 of section 226-b of the Real Property Law sets forth the consequences of a landlord’s unreasonable refusal to permit a tenant to sublet as: “the landlord must release the tenant from the lease upon request of the tenant.” There is little authority, and no appellate authority, dealing with the ramifications of a landlord’s unreasonable refusal to consent to subletting in a tenancy governed by section 226-b. In Kruger v Page Mgt. Co. (105 Misc 2d 14), the court held that a tenant may sublet his apartment when the landlord unreasonably refuses to consent to a sublease. In 39 Remson Co. v Braune (NYLJ, July 17, 1980, p 11, col 6), the court held that where a landlord unreasonably withholds his consent to subletting, the tenant could remain in possession or demand to have the lease terminated but could not create a subtenancy, absent consent. In Feldman v Simon Bros. Mgt. Co. (NYLJ, July 9, 1980, p 6, col 6 [an action for a declaratory judgment]), the court granted two tenants in the same building the right to “swap apartments” on a finding that the landlord was unreasonable in withholding the consent sought by the two tenants.
We believe that a careful textual analysis of section 226-b of the Real Property Law points ineluctably to one and only one acceptable interpretation of the remedies available to a tenant when a landlord unreasonably withholds consent to sublet, that is: the tenant may decide to forego the subletting and remain in occupancy or may elect to be released from further leasehold obligations. It may be
For certain tenants who wish to or must absent themselves from their apartments for protracted periods of time, but who intend to return prior to the termination of their leases, our construction of section 226-b of the Real Property Law may constitute a hardship. In such a case, if a landlord unreasonably withholds his consent to sublet, the tenant will have to elect whether to fulfill his obligation under the lease, without offsetting the expense by income derived from subletting the apartment, or request a termination of his obligations under the lease and surrender the apartment. While as noted above we construe section 226-b as affording tenants salutary protection from protracted obligation under a lease where the tenant wishes to or must surrender the premises, we do not interpret the statute as affording the tenant an absolute right to sublet over the landlord’s objection. The rights thus afforded the tenant under section 226-b while circumscribed, are nonetheless material, and they are extended without depriving the landlord of his basic freedom to contract (cf. Rowe v Great Atlantic & Pacific Tea Co., 46 NY2d 62, 68).
It is of course a general rule of statutory construction that a clear and specific legislative intent is required to override the common law (Hechter v New York Life Ins. Co., 46 NY2d 34, 39). Nevertheless, the rules regarding the
Turning now to the question of use and occupancy awarded to the landlord by Trial Term, the judgment appealed from provided a monetary award for four months’ rent, based upon the rent stated in the lease, plus an additional factor of 30%. Rent Guideline No. 11, effective February, 1980, provided for a 15% vacancy increase plus a 15% increase if a new three-year lease were granted. That presumably was the court’s rationale in arriving at the 30% figure.
Subdivision d of section YY51-5.0 of the Rent Stabilization Law (Administrative Code of City of New York) permits a landlord to offer an apartment that has been va
Dissenting Opinion
(dissenting). The lease between the parties provides in part: “Tenant shall not assign this agreement, or sublet the premises, or any part thereof, without the landlord’s consent in writing * * * Landlord shall not unreasonably withhold consent to subletting.”
Did the court below err in holding that the sublet clause in the written lease was voided by statute? Accordingly, the critical issue in this appeal is the effect to be given to section 226-b of the Real Property Law, amended as of June 3, 1975. The majority reads that language of the section which provides “If the landlord unreasonably withholds consent for such sublease or assignment, the landlord must release the tenant from the lease upon the request of the tenant”, as merging the pre-existing common law and statutory remedies which had been available to a tenant into a single right to terminate the lease. I must disagree with this view of the application of section 226-b of the Real Property Law and hence dissent from the result reached by the majority.
Section 226-b can be understood best in the light of the history and development of the landlord and tenant relationship. As the medieval system of land tenure withered away, landlord and tenant relationships proliferated. Over the centuries which intervened, to the present, persisting
Within a lifetime, the major wars, the consequences of industrialization, the gravitational pull of agricultural workers to the city, having resulted in urban congestion and a scarcity of residential housing. In New York, these factors and an increasing sensitivity on the part of law makers to the electorate (more tenants than landlords) tipped the scales of landlord and tenant law away from his historic bias. This shift in legal attitude has been evidenced by legislative adoption of rent controls, recognition of the warranty of habitability, imposition of multiple dwelling safeguards and a myriad of other laws designed to protect tenants. Long before this exhibition of legislative solicitude for the rights of tenants, one area in which the common law had been quite protective of the tenants’ rights was with respect to the assignment or subletting of the leasehold. Even in the formative days of the landlord and tenant law, the public policy supporting the free alienation of land was seen as stronger than the policy protecting landlords.
To the extent that the legislative history of section 226-b is not ambiguous, it supports the construction here asserted. In the absence of a clear directive from the Legislature that its amendment of section 226-b of the Real Property Law was designed to curtail the common law and the statutory rights of the tenant to assign or sublet rented premises, it is my view that the section provides additional remedies rather than limits those alternatives previously in existence. The tenants in the instant matter therefore, in my opinion, have the option of either terminating the lease or subletting the premises upon the recalcitrance of the landlord, in accordance with the provisions of the lease.
Concur: Tierney, J. P., and Riccobono, J.; Asch, J., dissents in a separate opinion.