can the primary tenant evict me?

[snowstorm]

I have have a written sublease agreement with the primary tenant in my apartment which is good until next November. I have never met the landlord and have dealt exclusively only with the primary tenant, so I don't know the nature of his agreement with the landlord.

He has just informed me today that his best friend is moving back to the city and I have to move out in May so that his best friend can move into his" old room" (the best friend lived in my room before me). I informed my primary tenant that I have no intention of leaving early, since I have a perfectly valid contract. Moving now would constitute a big upheaval in my life, and an agreement is an agreement. This, of course, did not sit well with him.

So I have two questions: 1) is our contract valid even if it is not notarized? 2) if he were to not accept my rent check next month, so that he can argue during eviction proceedings that I did not pay my rent on time, how can I protect myself? Is there a way to prove that I TRIED to pay but he would not accept?

Many thanks for any suggestions here. Obviously, until now I have been diligent in paying rent and utilities on time, and have never caused any kind of problems that could possibly be reason for eviction. On the contrary, it is the primary tenant who does things like smoke pot in the apartment, etc.

[TenantNet]

Questions:

Are you a real sublet, or are you a roommate? In other words, do you have the place to yourself, or do you and the primary tenant (and perhaps others) co-habitate the unit simultaneously?

Is the unit rent regulated ... do you know? Do you know what the rent the prime tenant is paying to the landlord? Is your rent more than half that (only if regulated?)

Flesh this out a bit.

[snowstorm]

Okay, here are the details. There are four people in the apartment total, including the primary tenant and myself. There are four rooms total in the apartment, so we are one person to each room. To complicate things a bit, the primary tenant and one of the girls are now dating, so she sleeps in his room all the time. It's not clear what that situation is, but to the extent that I understand this, all three of us pay rent to the primary tenant, who ten pays rent to the landlord.

The trouble is, I have no idea whether the apartment is rent-regulated or not, and I have no idea what the primary tenant pays in actual rent. The primary tenant has been so secretive on this point, that he refuses to even tell me the name of the landlord, much less give me an idea of how to contact the landlord. He is extremely protective of this entire situation, and my feeling is (I have nothing to back this up, just a hunch) we three subtenants of his are paying his rent pretty much in full. I also don't know what agreements he has with the other tenants, whether they are contractual or month-to-month, or what.

I'd be really grateful for some input here. When I came home today he had the other two roommates, plus a boyfriend of one and a friend of the other gathered around in the livingroom, and he made it a point to shout at me for not taking off my shoes in front of everyone (this has never, not once, been an issue before, so it's clear he's trying to intimidate and harass me into leaving) I tried to inform him of my rights as a tenant, and the laws against harrassment and such, but he just keeps shouting at me that it's his apartment, and then things like "How do you sleep at night" and "What kind of person are you." Although this is all unpleasant, my main concern is that he not do anything too stupid, since he clearly is a guy who cannot handle getting his own way. My impression of the events just now is that it still hasn't really sunk in that he may not be able to get his way in this. I want to find a way of informing him of the laws before things get even more unpleasant.

I know that everyone's answer will be that I should just move out, but this would be a huge upheaval right now and with bad credit, it's pretty tough to find a decent living situation in this city. If I can at all manage it, I want to keep this boat afloat.

[TenantNet]

So that means you are a roommate, not a sublet (the latter is when the primary tenant leaves intending to come back later). A roommate is otherwise known as an "occupant" or "licensee." See information on roommates in the forum reference section and elsewhere on the site.

As a licensee, you have some rights, but not a lot. Usually roommate situations have an oral agreement and the tenant can revoke the license with ten day's notice. If the licensee stays on after the notice, then the tenant can commence a licensee proceeding in Housing Court to evict the licensee. In other words, he can't do it without going to court. If he tries to change the locks that's an illegal eviction - usually if you've been there more than 30 days.

In your case you say you have a signed agreement. That it's not notarized - in our opinion - does not make it unenforceable. But that's a legal question best answered by an attorney and decided by a court. If by some chance the tenant decides to claim it's not his signature, I would get other examples of his signature for comparison (or have a witness to the signing of the agreement if there is one).

The tenant's relationship with the other person is irrelevant, but that person might make untrue statements about you, so be careful.

I would put a lock on your room as some situations people will do crazy things.

You can find out the name of the building owner by checking the NYC Acris database (Dept. of Finance), but that's necessarily the management company. If there a 4-5 of you, it would be difficult to determine if you're paying more than 50% of the lease rent or regulated rent. You can always research this further, but that might not get you further. If it was just you and him, then I'd look into it.

As for the other tenants, perhaps they will tell you if you ask. It sounds like this person is trying to run a hotel.

As for his harassment, just ignore it unless it escalates.

Eventually he will get you out ... but I think you can insist on staying through the end our your agreement. He might be hard to deal with, but in such situations negotiations might get your somewhere ... but getting him to respect your basic rights has to be the first step.

If it does escalate, call the police, but be prepared to have to show you live there. Keep on your person envelopes addressed to you and other proof of your residency. Look at the Illegal eviction information in the Reference section - and make sure he knows he can't change locks or take other steps to evict you without court process.

[snowstorm]

Thanks for this, it helps a lot. Just a couple details:

1) If he does go the route of trying to evict me, does he have to have a more substantial reason than just his preference to live with someone else? I'm guessing it matters whether a judge takes the contract as valid or not, right? To break a valid contract he would have to have a good reason, but if the contract doesn't count, he doesn't need much reason at all, right?

2) I'm surprised that the notice he has to give to me as a licensee is as little as ten days? This guy got THREE times the rent when I moved in (he has the March rent now, and the last month's rent, plus a security deposit) This isn't exactly a temporary situation, money-wise. He was clever enough to tell me to move out a couple of hours after I had given him my check for March, and I don't think that was an accident. Also, isn't the fact that he's accepting my rent checks (and probably cashing March today as soon as the bank opens) indicative that he is continuing in the rental agreement?

3)How do I prove that I attempted to pay the rent in the event he doesn't accept it next month as part of beginning eviction proceedings? Is there a way to prove I TRIED to pay him? I actually don't think he will go this route because he's extremely worried about shaking anything up in his relationship with the landlord. He has a sense that what he's doing is not 100% above board as far as the amount of rent he charges, and I suspect he'd be afraid to go the legal route. I'm guessing his saying yesterday he's going to contact a lawyer was an empty threat.

I think my biggest challenge in this situation isn't actually the threat of eviction, but dealing with a guy who has control issues bordering on the maniacal, and who may just have a meltdown if he doesn't get his way. I believe I am the first person in his life to ever tell him no.

Thanks so much for your help with this.

[TenantNet]

1. Without an agreement, he needs no reason.

2. If he has your deposit, given the behavior you describe, I'd be concerned about getting it back even if there are no damages. People like that tend to invent fake damages. Keep records, take MANY digital photos, etc. Some tenants use the security as their last month's rent. In your case, if you consider that, that would mean using the deposit as the second to last month's rent. While some say this is illegal, in the end it usually washes out. I don't think there are any laws covering roommate security deposits, but see the thread on deposits in the Reference section.

Keep checking your bank to see if/when he cashes the March check. That locks you in. Don't tell him of the licensee notice requirement. If he hasn't given you written notice, then that doesn't kick in ... and possibly the agreement trumps that. I would rely on the latter.

3. You could mail it to him certified. You could also call DHCR to see if the unit is regulated. If so, then maybe the LL should be notified as to what is going on.

[snowstorm]

OK, so latest development is that primary tenant thinks he wants to do something official through the courts. Since he hasn't been outside today he hasn't cashed my March check.

If he does cash it, as you've pointed out, then I'm covered until the end of the month, and then what?

If he doesn't, what happens next? Any precautions I should take? Since he told me to leave after he took my check, I obviously didn't know to take the precaution of mailing it to him.

[TenantNet]

You're not in court ... yet. If that becomes more likely to happen, you might also get some legal advice. We're not lawyers.

That said, as I said before, your defense at that time would be your agreement. How solid that is depends on various factors. But still it's something to assert.

You might consider canceling the check. That's a judgment call. Canceling it would mean a number of things, i.e., you're starting to use your last month and/or deposit and not giving this guy any more funds. But it can also be used by the prime tenant as fodder for bringing an eviction case. And it adds a non-pay element to any case he brings.

It's not easy for him to bring a case. He would likely need to get his own lawyer, pay the cost for the docket number, serve you, etc. No matter what happens, any notice from him has to be in writing.

If things escalate, look at how determined he is and what tools he's bringing to the table. Then it's a question of time. If your agreement is up in November, then that's your outside. How much time do you need at a minimum ... that's your inside.

Some tenant lawyers can negotiate six months time to leave.

[snowstorm]

GREAT help. Really appreciate the input. I'll post again if any other questions come up in all this.

[ronin]

I would be careful about canceling the check without notice. That can subject you to other fees when it is presented and rejected. General Obligations Law 11-104?

Since he hasn't deposited it, what you can do is send a certified letter notifying him that that check is no longer valid due to its not being negotiated and must be replaced. If and when you replace it have him sign for it this time (or send it with the notice). Or simply force him to take payment by notice (you hold the money so he can't screw with your account).

Also, there is nothing about notarization that has anything to do with the validity of the contract. The fact is that oral contracts are enforceable in just about everything other than real estate transactions- the written requirement of leases is to aid proof issues (historically to keep drunken statements from transferring the family home). Notarization is just an added element of proof (which could also be forged...)

The main issue proving your contract would be none other than the fact that you are living there and can show payments every month. The written agreement would be prima facie evidence- self-proving. Only if he claims he didn't sign it would his signature be doubted, and then it is his burden to disprove it.

As for the non-pay case. You would win it simply by presenting your payments (so make sure to save up your rent) and stating that he wouldn't accept payment. This strategy is an issue because it may put you on the Tenant Blacklist.... If you are willing to pay, it might be worth getting a lawyer to write a letter on your behalf explaining to your roommate that you have rights and he has liabilities (will cost you $75 - $150). Sabre rattling basically. But usually enough to make most people back down.

In the best case scenario your time is basically up in November. So you really want to avoid that blacklist.

I think that there is a value to him and you for you to move out. After you establish that you can stay till November (and possibly till 6 months after) he and his pals may decide to assist you with money to move out early (if they have it). If you could work out a deal that would relieve you of his nonsense and let him and his friends continue with their plans that would be best for both of you.

I also think that there are two sides to every story. In these tenant v. roommate cases we, the advocates, have to be very careful. A prime tenant or roommate is not a deep pocket LL. And sometimes what our advice can do is help the real LL come out winning everything and the tenant, roommates, and licensees all ending up homeless!

[snowstorm]

Thanks for the additional input, ronin. In the couple of weeks since I posted this, there has been ongoing unpleasantness. My primary tenant called the police and started shouting at me because I installed a lock on my bedroom door, as advised to do on this forum. The police of course told him I'm perfectly within my right to lock my door. He has also been sending daily emails on inappropriate subjects, such as finding pubic hair in the bathroom. As I said, this guy, right or wrong, just cannot live with the concept that he might not get his way. Although nothing so far has been at the level where the police can interfere, one officer pointed out that this type of person typically escalates behavior when his initial tactics don't seem to have an effect. So I have good reason to fear whenever I come home every day.

Since the entire ceiling of our bathroom has been covered in mold for months, I decided to write him a letter asking that he deal with it, and slipped it under his door. It may seem that I am just picking a fight now, in this charged atmosphere, but I really am legitimately concerned about the mold issue, and have been for a while. Anyways, he returned the letter to me unopened. So I have decided to send him a second letter, certified, in which I explain that him choosing to not open correspondence from me regarding sanitary conditions in the place which he needs to address, is not an option. I also tell him in the letter that since he verified receipt of my first notice, he has 14 days from the day he first received notice to correct the problem, otherwise I will be withholding rent.

The healthiest option for me, however, is not to be right - which I am - but to get myself away from this poisonous atmosphere. Since he is holding two months of my rent in advance, and since moving presents a real financial hardship right now, I am considering going to the landlord to see what their perspective is. I am aware that since my issue is with the primary tenant, the landlord may not feel especially motivated to deal with me at all - why should he be? Maybe someone has suggestions on how I can phrase the problem to the landlord, in such a way that the landlord might want to interfere. I have considered, for example, explaining to the landlord that in order to protect myself from this creep, I have to call 311 to document the health and safety violations in the apartment - which would look badly for the landlord as well. But I don't want to give the landlord the impression that I'm making threats. I don't want to fight a war, I just want to find a solution that protects both my mental and financial health.

Any suggestions warmly welcomed. And thank you for the referral to that database - it is how I was able to track down the contact info for the landlord and management company.