By Lynn Armentrout, Esq.
October 2005 (revised February 2006)
Whether you are contemplating or currently in a roommate situation, there are two things you should do: (1) get to know your legal rights and obligations, and (2) have a written agreement with your roommate.
You have the right to have a roommate
A tenant of an apartment, rent-regulated or not, has the legal right to have at least one adult roommate (with or without dependent children). The law requires the tenant to notify the landlord of the name of the roommate. (While there does not appear to be any penalty for failing to do so, it may nevertheless be advisable, depending on the circumstances.)
If only one tenant is named on the lease, then that tenant may have only one adult roommate. However, a landlord may not evict a tenant for violating the roommate law by having too many roommates. But if your lease specifically restricts occupancy of your apartment to the persons described in the roommate law (RPL §235-f), then a violation can lead to an eviction proceeding. It is the violation of the lease, not the statute, that gives the ground for eviction. More and more landlords are inserting this restrictive language in leases.
If your apartment is subject to rent control the landlord has the right to add a 10% surcharge to your rent if you bring in a roommate. However, it would be permissible to pass that cost on to your roommate. This surcharge does not apply to rent-stabilized apartments. (Roughly speaking, apartments occupied by the same tenant, or his/her successors, since before 1971 are subject to rent control; apartments occupied post-1971 are subject to rent stabilization.)
You do not have the right to charge any rent you please
If you are the tenant named on the lease, and your apartment is rent-stabilized, you are prohibited from charging your roommate more than a proportionate share of the rent. A roommate’s proportionate share of the rent is determined by dividing the legal rent by the number of tenants and occupants (excluding spouses and dependent children). Charging a roommate more than a proportionate share of rent is a violation of the Rent Stabilization Code and can lead to eviction.
There is no such proportionate-rent rule for rent-controlled tenants. However, judges have long disapproved of "profiteering" by rent-regulated tenants. Profiteering is generally found when a rent-regulated tenant charges a subtenant an amount of rent that is well in excess of the total, legal rent for the apartment. Although no court has yet evicted a rent-controlled tenant for profiteering on a roommate (as opposed to subtenant), the law is evolving in this area and, if you want to keep your apartment, it is wise to play it safe. So far, in a rent-controlled situation, the tenant is safe from eviction so long as the roommate is not paying an amount that exceeds the total rent for the apartment.
A rent-stabilized tenant who charges a roommate a disproportionate share of the rent is subject not only to eviction by the landlord, but also to an overcharge complaint by the roommate. If the overcharge is willful, the tenant could end up paying the roommate treble damages, or three times the amount of the overcharge.
A rent-controlled tenant who charges a roommate more than the maximum legal rent for the apartment may or may not be subject to eviction. But whether or not the landlord would have a claim for eviction, the overcharged roommate would most likely have a claim for a rent overcharge.
You should have a written agreement with your roommate
Even if your roommate is your best friend, it is best not to leave the terms of your roommate relationship to trust. Even the most open and trusting relationships have been known to fall apart over issues like money and property -- ask any lawyer.
A written agreement avoids arguments down the road about what, precisely, was agreed upon. It can also provide a solution when problems do arise.
You do not need a lawyer to draft an agreement. A written agreement using your own plain language is just as enforceable as (and often preferable to) a lengthy document filled with legal jargon. The only requirement for an agreement to be enforceable is that it contain all of the essential terms. The essential terms of a rental agreement are: (1) the amount of rent being charged and how it is to be paid, (2) the term of the occupancy, and (3) the space being occupied.
It is advisable, however, to include other terms, such as penalties for late payment, restrictions on house guests, how you will share chores, how and when a security deposit will be returned, and any other matter that you think is important.
It is also a good idea to make provision for what happens when one roommate wants to terminate the roommate relationship before the end of the agreed-upon term. If both roommates have signed the lease, then both roommates are responsible to the landlord for the rent, but the reality is that the remaining roommate gets stuck with the debt because the consequence of not paying the rent -- eviction -- befalls only the remaining roommate. In such a situation, what is the obligation of the departing roommate to the remaining roommate?
Also, even if only one of the parties is named on the lease, that party may be relying on her roommate’s share of the rent in order to make ends meet; if the roommate moves out before the end of her term, she leaves the tenant of record in the lurch.
In a recent Small Claims Court case a roommate sued his former roommate, who moved out early, for his share of the rent to the end of the lease term. Both of the roommates were named on the lease. The judge wrestled to find an equitable result and had difficulty in the absence of an agreement and any law clearly on point. After many pages of analysis, he ended up calling the parties in for another hearing.
You can avoid having your roommate dispute turn into major litigation by simply making an agreement about your obligations toward one another in the event the relationship terminates before the end of the agreement. One equitable arrangement would be to allow the departing roommate out of the lease, or the rental agreement, once s/he finds an acceptable roommate to take her/his place. If the remaining roommate rejects the proposed new roommate without good cause, then the departing roommate should be released of any further obligations. This arrangement is similar to a provision in the Real Property Law on assignments of leases.
As long as the subject of your agreement is not illegal or against public policy, you are pretty much free to chart your own course. Just make sure your agreement is clear and unambiguous. A clear and unambiguous agreement is one that is not capable of more than one interpretation. If your agreement is clear and unambiguous, and does not violate law or public policy, a court will enforce it according to its terms.
What to do when you want your roommate to leave
After originally posting this article this writer received countless calls and e-mails from tenants living with the roommate from hell, and was tempted to rename the article "Roommate advice: Don’t do it!"
If you are the tenant of record and your roommate is not, and you would like your roommate to leave, and your roommate has been in the apartment for more than 30 days, and your roommate refuses to leave voluntarily, then, unfortunately, you have only one recourse -- a formal eviction proceeding. This writer does not prosecute (only defends) eviction proceedings. The law does not require that you be represented by a lawyer in Housing Court, and the Court provides assistance to parties without lawyers. However, without a lawyer it may be more difficult to get the results you want. There are many lawyers in the City of New York who make their living prosecuting eviction proceedings.
Lynn Armentrout is a NYC tenant attorney. She is no longer in private practice.