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Roommate moving out for 3 months and trying to sublet

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Roommate moving out for 3 months and trying to sublet

Postby staff » Wed Dec 07, 2011 7:37 pm

We are month to month in NYC. Each roommate pays rent with an individual check. We want this roommate to move out for myriad reasons. The roommate is planning on leaving the country for 3 months and sticking us with a person of her choosing. Obviously this is not what we want as we would like to choose who we live with. The roommate was given 30 days notice to move out by us. The roommate is stating that they are not going to move out, eventhough they will not be living here. Can we legally evict the roommate?
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Postby TenantNet » Wed Dec 07, 2011 8:31 pm

You need to clarify a few things. You claim to be month to month now, but did you start out with a lease? If so, was the "roommate" on the lease a a tenant? Does the lease have any language about "joint and several"? Is the landlord renting rooms separately, or is it just for convenience that the LL takes separate checks? Does he accept checks as "rent" from all occupants?

I ask these questions because the answer can determine who has rights and responsibilities as a tenant, and who doesn't. Technically a "roommate" is not a tenant, either an undertenant, occupant or licensee.

Depending on the rights, a tenant might have the right to sublet his/her room, subject to the LL's approval.

BTW, you might not have the legal right to give your "roommate" a 30-day notice if he/she is an actual tenant. If you then you are not the landlord and cannot evict the tenant.

So your rights and responsibilities will depend on the fact pattern.
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Postby staff » Wed Dec 07, 2011 9:08 pm

Thank you for responding.

The house has been passed down through friends for about 10 years. The original people who were on the lease are no longer here. This roommate was never on the lease. I have lived here longest.

We normally send rent checks together but each person writes a separate check. The reason I brought up the checks is that each person pays a different amount which totals the rent.

The landlord is basically a slumlord and doesn't care what happens here other than receiving rent (this has been verbalized to us in other circumstances)
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Postby staff » Wed Dec 07, 2011 11:15 pm

Sorry to hijack my own thread, but this situation has just become a whole new ball game. This roommate, after receiving the 30 day notice apparently went to the landlord with only one other roommate and signed a lease! For more than we pay now!

Is it legal for the landlord/roommate to have done this without letting the other 6 roommates know? This is very confusing.
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Postby TenantNet » Wed Dec 07, 2011 11:53 pm

So you got problems. A month-to-month lease (with the landlord) is still a lease. If all six of you are on equal footing, then - as I said before - you can't really give a 30 day notice to the other roommate. You aren't his landlord. The length of time you've been there isn't really relevant.

But similarly, he can't force you out. But the landlord can. His new lease with the landlord isn't legal in my opinion. At least not now. The LL would have to give you (and all the others) notice that the month-to-month lease would not be renewed and he expected all to leave. Once out, the LL can sign a new lease with whomever he wants, and for whatever amount he wants. Of course you can fight it.

Now, that's presuming the unit is not rent regulated. You should really look to see if the unit should be rent stab. That could change everything.

Since there's four of you, I would consult with a tenant attorney to see what your options are, and the next step. If you do withhold rent, keep it in escrow. And keep in mind the LL might have a deposit to which you might be entitled. A LL that creates an illegal lease might be inclined to keep the deposit.
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Postby TenantNet » Thu Dec 08, 2011 12:07 am

If the LL wants you out, they have to give you 30 days written notice (don't tell him that). See the discussion on M2M tenants in the forum's Reference section. If he gave you a notice today, it wouldn't be effective until Feb. 1st. Some LLs make a lot of mistakes.

So he couldn't even start a proceeding in Housing Court until after Feb. 1st. While the LL can eventually get you all out if he wants, at some point it will be about timing and strategy. Remember, whether or not the new lease has any validity, the LL could decide he wants everyone out, and unless you can prove there's RS status, he will eventually get you out.

It's a strategy decision whether you pay rent in January. Depends on if you plan on fighting it, or fighting for time and what legal advise you get. It's possible that if you pay rent in January that might vitiate the supposed new lease signed by the other two. (get a copy and see what the terms of the new lease are, i.e., what is the starting date).
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Postby staff » Thu Dec 08, 2011 12:26 am

I really appreciate the speedy reply. This is a lot to digest and I'm going to speak to the other roommates and an attorney and see how we want to proceed.

I'm 99% sure the landlord doesn't want us out, like I said she just wants her money. The other two gave her some story about who knows what to get this lease. I did get a copy of it from one of them, so that helps.

So the lease isn't really legal because we were never informed that our month to month was over? And possibly paying rent right now might null and void this lease?

I will look into rent stab. The rent is never raised, but I believe that has more to do with us keeping our mouths shut for the most part about how the house is never repaired or cared about.
Last edited by staff on Thu Dec 08, 2011 12:46 am, edited 1 time in total.
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Postby staff » Thu Dec 08, 2011 12:33 am

Oh, also the lease agreement "started" Dec 1 which I find hard to believe. This roommate was given 30 days notice from me the night before (30 of November). I found out about the lease today!

Those of us not on this lease have not sent our rent in yet. It was supposed to go out today and we decided to wait after we found out about this and how to proceed.
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Postby TenantNet » Thu Dec 08, 2011 1:01 am

I can't say for a fact it's illegal, but it sounds so based on what you've said.

There's always the deposit issue, but given what you've described, I would consider paying the rent (at the old rate) and watching your bank accounts to see if it's cashed.
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Postby ronin » Fri Dec 09, 2011 3:06 am

I disagree. Unless the unit is stabilized there is nothing illegal about this lease. The other roommate already inhabits the apartment and is simply trying to create a lease out of a month to month situation.

The OP confused seniority with right and gave that roommate a blatantly bogus 30 day notice. The roommate responded by securing his or her rights with a lease with the landlord. The others have lost any sympathy they might have had by showing their willingness to evict the roommate. They were month to month. 30 days notice and hit the road. They agreed to this by having served the first (and bogus) 30 day notice on the roommate.

The LL can evict the rest. But the roommate has a valid lease granting him or her the right to stay for a term.

And if it is stabilized they may all be out of luck- but I won't go into it (just see squatter cases- no amorphous unrelated group hold on rights).

Let's just pretend it was the roommate who was the OP and told us some fellow roommate served a 30 day notice. We would have a field day telling them how to secure their position- one way would have been to contact the LL. Which this roommate did. Shame on the OP for trying to evict someone else with equal rights- and now superior rights.
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Postby TenantNet » Fri Dec 09, 2011 5:29 am

Ronin, you're incorrect here.

Based on the information from this thread, the new lease appears to be unenforceable. You can't lease the same premises twice for the same time period. The existing tenants appear to already have one month-to-month lease for the entire premises (where each has equal tenancy rights), which is a lease until it expires. And MDL requires they be given 30 days notice if the LL wants to end the M2M lease.

If the LL rented rooms separately, that might be different, but it appears this is a rental of the entire unit. The LL can't terminate some without the others. He can't break them up as long as the existing lease is in effect. He must end the M2M for all. Only then can he decide to rent to a new group of tenants (which might include the one tenant singled out).

Yes, they lost sympathy by acting in a mob-like fashion, but their wrong doesn't make the other tenant right. In the same way seniority doesn't create a right, whatever transgressions the one tenant committed doesn't give the rest of them the right to give notice assuming they all have rights of tenancy.
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Postby Emeraldstar » Fri Dec 09, 2011 6:07 pm

Hi All
I get the M2M issue. But did I understand the op correctly that they & roommates are renting within a private house? If so, I assume the 30 day notice ( to the disliked roomie) would be invalid. It would be the LL's call to rid them of the roomie.....yes? Call me nuts, but I sense room rentals & shared areas so I'm thinking the LL is calling bluff on those who upset LL income & choice of renter. But I may be suffering from house halucinations living in an outer boro :wink:
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Postby TenantNet » Fri Dec 09, 2011 6:13 pm

If this is a regular apartment, the LL would have to end the lease for all. He can't pick out one of several roommates for eviction.

There might be some exceptions not discussed above. If there's a net lease on a house or building and if one of the "tenants" rents out rooms, that might complicate legal rights. But I don't think that's what is being discussed.

Yes, being in outer boros can lead to dementia :)
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Postby Emeraldstar » Fri Dec 09, 2011 6:24 pm

Hi All
Thanks for the clarity TN .............what was that post about :lol:
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Postby ronin » Fri Dec 16, 2011 9:29 pm

Tenant- you are definitely right about that!

But I think you are wrong! :D

For anything other than a regulated apartment I see it like this: The LL can give termination notices to the whole bunch, but if he agrees with one of them to let them come back after the end that particular tenant would be protected by his written agreement. So technically the unit cannot be leased to two tenants at the same time, but the only one who can complain about it is the tenant with the new lease. Since he gets to stay he won't complain about it.

Tell what you think I'm missing here.

I agree with your point about the wrongs of one not making more wrongs right, but I really agree with your description, "mob-like". Tenants who act like slumlords are not very sympathetic.
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