NYC Rental Apartments: How Many Roommates Are Too Many Roommates?

By | November 6, 2015

New York City Roommate Law Questions And Answers

Given the (exorbitant) monthly rents being asked by building owners for apartments throughout New York City, a common question that frequently gets asked by prospective tenants concerns just how many people are legally allowed to live in any given unit?

For some answers, and through the wonders of networking, I was fortunate to have met a learned New York City attorney who practices, teaches and writes about landlord and tenant law among other legal issues,  of Itkowitz PLLC.

In one of the venues Michelle is featured in, LandlordsNY, the following two questions were asked concerning apartment occupancy and she provides the complete and extremely thoughtful answers. For any other landlord and tenant related legal questions that readers might have, Michelle can be reached at the links above…

Question: (paraphrased) “I have a two-family home and I want to write the lease for the rental apartment in such a way that the tenants cannot have a guest for more than a month. In addition, if the tenants do have a guest for more than a month, can I charge if their guest stays more than 29 days? I am renting the better space of my two-family house, a 1500sq ft duplex and it is very spacious. Thus, I am constantly dealing with this issue, especially when there’s only two people in a two-bedroom apartment of such a large size. How can I word this so it a legal statement on my lease.”

Answer

I hate to be the bearer of bad news – but you cannot legally prevent either of your tenants from having roommates. Please listen carefully.

Under New York Real Property Law § 235(f), often referred to as the “Roommate Law”, a residential lease entered into by one tenant implicitly permits that tenant to share the apartment with either his/her immediate family or unrelated persons “for reasons of economy, safety and companionship.” RPL § 235(f)-3. .

In fact, as long as the tenant or the tenant’s spouse is still living there full time (i.e. they haven’t sublet the apartment), you have to let the tenant’s immediate family move in with him or her, and on top of that, one additional occupant. That can get more crowded than you like, especially since you are living in the house as well. But you have no choice.

What CAN you do? Here are some suggestions.

 Screen potential tenants very well. Get references and actually check them. Talk to the potential tenant’s last landlord.

 Pursuant to RPL § 235 (f)-5, you can request that the Tenant tell you the name of the occupant within thirty days of you demanding such. This isn’t much, but it can show the tenant that you are watching the situation. Also, if tenant has more than one extra occupant, then you can talk to your lawyer and possibly proceed to terminate the lease early.

 Watch carefully who comes and goes, perhaps even consider using security cameras. What the tenant does NOT have a right to do is illegally sublet the apartment. In other words, the tenant cannot install someone new in the apartment and then move out. If that happens, the occupant has no right to remain and you can evict him or her. AS LONG AS, you do not take money from the occupant directly, which might establish a landlord and tenant relationship between you and the occupant. Watch out for that!

 The ultimate bottom line is that you are lucky that the apartment is in a two-family building and, thus, not subject to Rent Stabilization. Therefore, if you do not like a tenant’s behavior, you can always refuse to renew the lease. Perhaps you should not make leases that are longer than a year.

Question“I raised the rent 3%. The tenants want an additional roommate added to the lease. The new roommate’s credit check shows a 4-year-old bankruptcy, and a 1-year-old federal tax lien. Can I charge an additional $25.00 for rent, and request a second security deposit? I own a three family, owner occupied 4-story townhouse; market rental.”

Answer

This is a three family building, so it is free market. You can, therefore, insist on any terms you want before you enter into a lease – more security, higher rent, or you can refuse to add this person to the lease. You do NOT have to make a contract (in this case a lease) with someone with whom you do not want to make a contract. But (I know, there is always a “but” with me) there are a few things that you cannot do that you should be aware of.

Please listen carefully. The tenant is allowed to have one roommate. A roommate is different from a person added to the lease. You described this prospective occupant as “a roommate added to the lease.” Again, you do not have to make a lease with a person that you do not want to, as long as the reason that you do not want to is not based upon the person’s inclusion in a protected class, such as race. However, you may NOT prevent the tenant of record from having a roommate of the tenant’s choice (who is not on the lease).

Under New York Real Property Law § 235(f), often referred to as the Roommate Law, a residential lease entered into by one tenant implicitly permits that tenant to share the apartment with either his/her immediate family or unrelated persons “for reasons of economy, safety and companionship.” RPL § 235(f)-3. This is true even if a residential lease says otherwise.

The disadvantage of putting the roommate on the lease is that you are giving the roommate more rights than if he or she was just a roommate. For example, if you ever need to do a Rent Demand with respect to this apartment, you will be legally required to serve one on each tenant. The advantage of putting the roommate on the lease is that now two people legally owe you the rent. If you do not put the roommate on the lease and you have to sue the tenant someday, you CAN evict the roommate at the same time as the tenant, but you cannot get a money judgment for the rent against the roommate because the roommate does not have a contract with you saying that he owes the rent. He is just roommate. In summary – those on the lease have more rights than those not on the lease. But those on the lease also have more liability to the landlord than those not on the lease.

One final thing. If you decide not to put the roommate on the lease, than be careful to never accept rent directly from the roommate. If you do accept rent directly from the roommate (for example, by accepting a check from the roommate’s bank account) than you may actually be doing the equivalent of putting the roommate on the lease, because you may be creating a direct landlord and tenant contract with the roommate.

Michael Haltman is President of Hallmark Abstract Service in New York.

One thought on “NYC Rental Apartments: How Many Roommates Are Too Many Roommates?

  1. nina

    if the tenant has 2 roommates is that grounds for an eviction plus the leasee chargers more than an equal share

    Reply

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