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Roommate holdover questions

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Roommate holdover questions

Postby brooklyntenant666 » Thu Sep 23, 2021 6:09 pm

Hi. I have been in my non-regulated Brooklyn apartment for a decade. I am the only tenant on the lease. I have rented one room to a person from craigslist who has become problematic. We do not have a signed agreement.

I understand that I need to refuse to accept rent money and have a server present him with official 30 day notice to move out papers, can that server be my neighbor?

I am also wondering if anyone know what to expect in terms of a timeline for getting him out.I assume he won't leave after the 30 days, so I will go to get a court date. Can anyone offer advice as to how long that takes and what to expect?

Is there anything I need to be documenting in the meantime? Will I need to show any specific evidence?

Thank you!
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Re: Roommate holdover questions

Postby TenantNet » Thu Sep 23, 2021 7:28 pm

Your roommate (also called an occupant, licensee or undertenant). How long has this person lived in the unit? Have they paid rent to you?

"I understand that I need to refuse to accept rent money and have a server present him with official 30 day notice to move out papers, can that server be my neighbor? "

Where did you hear that?

Document everything. All letters, emails, phone calls (record), mail (envelopes with postmarks), personal diary, etc.

You're going to need to do some research and I suggest you get legal advice from a tenant attorney. Licensee proceedings can be complicated, especially with notice requirements.

I just googled, "nyc tenant licensee proceeding"

Here's one...

https://www.avvo.com/legal-answers/what ... 37014.html

Scroll down to the answer from Steve Smollens. He's a well-known NYC tenant attorney. Here is what he said,

Dear Patchogue Tenant:

No. That is wrong. If you followed up on that advice you could risk arrest for an unlawful eviction. Aside from the fact a Notice to Quit does not self-execute (meaning effective on the day demanded to leave) when the licensee does not voluntarily leave, the licensor must commence a summary holdover proceeding in the local Landlord and Tenant Court. Only a judge may decide that the notice to quit was legally sufficient to award a judgment for possession and a warrant of eviction.

The lawyer did not provide correct information on the manner of service. The statute involving eviction proceedings where there is no landlord and tenant relation (you and your "licensee'") provides:

">>>A special proceeding may be maintained under this article after a ten-day notice to quit has been served upon the respondent in the manner prescribed in section 735, upon the following grounds ***7. He is a licensee of the person entitled to possession of the property at the time of the license, and (a) his license has expired, or (b) his license has been revoked by the licensor,>>>"
See more at: http://codes.lp.findlaw.com/nycode/RPA/ ... L1ez1.dpuf

Section 735 directs service in very specific methods, and your lawyer, did not choose a single allowed or proper method for serving the notice to quit. Here is a link to the statute: http://codes.lp.findlaw.com/nycode/RPA/7/735

Even more confusing, New York Courts (http://law.justia.com/cases/new-york/co ... 739-0.html) added a layer to Section 735 service not written in the statute, and failing to provide an affidavit of service that meets the judicial test will doom the holdover proceeding. Although that decision is now thirty years old, New York legislators never amended the statute to comply with the higher standard imposed by the judges.

You were correct to see a lawyer. And, there is no way on your own to know the lawyer gave wrong information, The Internet is a wonderful tool for enhancing knowledge and information.

I have forty years experience in the specialty of Housing Law and Tenant's Rights advocacy. The answer I provided to you does not create an attorney and client relation. You are free to check my office contact information at my AVVO profile. The answer offered is in the nature of general information, and should not be considered as tailored legal advice. I offer answers as a service to the community with my firm belief that you should try gain a good outcome for your legal issue and to avoid a bad outcome if you can.


Smollens is not an advertiser on TenantNet, but we have a number of experienced tenant attorneys who are on this site.
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Re: Roommate holdover questions

Postby brooklyntenant666 » Fri Sep 24, 2021 9:36 am

Thanks for your help, and I will review those other answers. He has lived here 120 days. But I’m not sure, are you familiar with NYC law? It literally says it on the notice of termination form “Do not accept rent after the termination date! If you accept rent after the end the tenancy, you will have to start all over again.”

The problem with documenting things is that there’s not much to document, a all of our conversations occur in person, we live in the same apt, and there’s just not much to document. That’s what I’m worried about.
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Re: Roommate holdover questions

Postby TenantNet » Fri Sep 24, 2021 1:30 pm

I think I know just a little about NYC LL-tenant law. :).

What notice of termination? Where did you get it, on the back of a package of corn flakes? Seriously, if it's not on the net, can you send us a copy?

That statement pertains to holdovers of regular tenants. There is a window period between the Notice of Termination and the commencement of a proceeding in Housing Court. If the LL accepts rent within that period, then that can be deemed to vitiate the termination notice and reinstates the tenancy.

However, it's not an absolute, and the prohibition can be ambiguous.

Also a licensee and regular tenancy - while having similarities - often have differences. That's why I asked if the tenant paid you anything (you didn't answer that). Was there an agreement between you and the roommate?

One thing is you should download the Lebovitz survey of the changes to the rent laws in 2019 (search for it on the forum). It will give you information on notices and time periods.
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Re: Roommate holdover questions

Postby brooklyntenant666 » Sat Sep 25, 2021 9:21 am

I’m sorry I wasn’t trying to be rude, but it pretty much states that on practically every form and webpage so I have to ask. If you follow the prompts from the courts page the form that it produces for you to use states it in bold https://nycourts.gov/courts/nyc/housing ... _diy.shtml

But yes he pays me each month and I pay the landlord. There is no written agreement. I had written something stating that he is a month to month tenant and we must give each other 30 days notification but he lost that piece of paper anyways. I will look for the Leibovitz survey.
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Re: Roommate holdover questions

Postby TenantNet » Sat Sep 25, 2021 11:38 am

Nor was I, but we have operated this site for 30 years and been in court with our landlord many times. When you say "every form," well we're not mind-readers.

The statement in itself is not incorrect, but it can be misapplied. The rule against taking rent is for a very specific window of time and usually applies to regular tenant holdover situations. For example, if the person (roommate) had not paid rent or if there was no agreement, then things get a little more subjective. I've seen cases go both ways, so it might depend on any number of things.

The page you cite is better than most. But some could lead to erroneous conclusions. The idea of a Notice of Termination is that you (acting as a landlord) are terminating a lease or agreement. Seems obvious, but not always that obvious to some. You have to terminate the agreement.

In some cases (usually rent regulated regular tenancies), you have to give a tenant a "Notice to Quit" telling them they have to stop whatever it is that might lead to more dire consequences (for example, playing loud music at 3 AM).

With non-regulated tenants, you don't really need a reason.

Generally terminations come from either lease violations or nuisances. In many cases - but not all - these can be corrected. If the problem continues, then the lease/agreement can be terminated and after a period of time, you can commence a holdover proceeding, meaning that they are "holding over" past the end of their tenancy.

With roommates, there really is no tenancy, so a licensee proceeding is usually the vehicle. But it does depend on if they are paying rent or compensation, or if there is an agreement in place. Usually that means a written agreement, but with documentation, an oral one might be acceptable. Depends if the roommate is challenging all this. However, if they haven't left and if you are at this stage, then obviously they are challenging things.

We recommend the articles written by Judge Lebovitz as it tells you about time periods and service of notice (so does the Pro Bono page). See http://tenant.net/phpBB3/viewtopic.php?f=24&t=13981

Pay attention to references to RPL and RPAPL. (look them up).

As for server, my understanding is that it must be a person over 18 and not a party or a person with any interest in the outcome, so I would say a neighbor is probably OK.

When this is all over, you hopefully will have learned:

1. Always document and write up a roommate agreement signed by both parties (don't make it too onerous).

2. NEVER EVER EVER use Craig's List.

3. You asked about timeline. Well as you might expect, with COVID, the courts are backed-up, but still somewhat operational; some are using video feeds. Even in regular times, things can take a while, especially if there is opposition. You're probably mad at the roommate over something, but I would look for some sort of compromise. Remember, he/she will have to find a new place, so that's a consideration.

As the primary tenant, you will eventually get the person out, it's just a matter of time and effort. Also understand that these things can get complicated. We can't give you every little detail on how things work (and we are not lawyers in court every day). The court page is more detailed, but even that can't tell you everything. At some point you may need legal advice and a low-cost consultation may help clear up things. Also understand that you are acting as a landlord and some (including us and some tenant attorneys) will not help evict a person.
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