Your Right to Have a Roommate

In New York State, the law protects the right of certain tenants to live with a roommate regardless of what it says in their leases. This right cannot be waived. If you are covered by the roommate law (Real Property Law §235-f), but your lease says that you cannot have a roommate, that provision is not valid, and you can ignore it.

By ensuring the right of tenants to live with whomever they choose, the roommate law is a barrier to numerous forms of landlord discrimination. It prevents landlords from objecting to certain types of relationships or certain kinds of people—or from coming up with bogus reasons that accomplish the same thing. Since the law does not require tenants to obtain permission to move in a roommate, nor to prove that their roommate meets certain criteria, taking in a roommate should not give landlords new opportunities to harass their tenants or intrude on their personal lives.

The roommate law also allows tenants to share the cost of the rent and remain in apartments that they otherwise would not be able to afford. With rents soaring and the few remaining rental-assistance programs closed to the majority of tenants in need, it is an important tool in  ighting displacement. The right to share one’s home and living expenses is the reason why numerous lower income tenants, including many elderly and disabled, are able to avoid homelessness and stay in their communities.

This article explains who is covered by the roommate law in New York, and how it may apply to you.

 

How is a roommate different from a cotenant, a subtenant/subletter, a family member who lives with me, or a guest?

The word roommate is used in everyday language to describe many types of situations where two or more unrelated people share the same apartment. However, there is a legal distinction between the different types of arrangements, and it’s important to know which one applies to you.

Your rights vary depending on the arrangement. What matters in court, if you ever end up there, is what the actual situation is, not what you called it.

Roommate: In this article, a roommate refers only to a person who is not named on the lease of the apartment he/she shares with the prime tenant or leaseholder, and is not to be confused with the following:

A cotenant is named on the same lease as one or more other people who all share the same apartment. Cotenants equally share the full rights and responsibilities of the tenancy.

A subtenant or subletter is someone who rents an apartment from the prime tenant (rather than from the landlord) for a period of time when the prime tenant is temporarily away. If someone lives in your apartment while you live elsewhere most of the time, legally that person is not your roommate; he/she is your subletter (either legally or illegally). Many tenants have the right to sublet by law, but you must follow proper procedures and/or obtain written consent from your landlord. If you don’t, it can lead to eviction.

A family member is a member of the primary tenant’s family who lives in the apartment but is not named on the lease. Some family members, in certain situations, have succession rights: They can take over the apartment when the prime tenant moves or dies. Also, when determining the right of tenants to have an additional roommate, certain family members are not counted.

A guest or licensee is a person who has permission from the primary tenant to stay in the apartment temporarily, but who has no written agreement and does not pay rent. For example: Your cousin comes to stay with you and sleeps on your couch for a week.

 

Can my family members live with me?

Immediate family members of the primary tenant who live in the apartment but are not on the lease are not considered roommates. All tenants have a right to live with family members so long as their apartment does not become overcrowded. However, tenants in public housing and subsidized housing must accurately report all household members and their incomes, including when this information changes mid-lease. Failure to do so is grounds for eviction. Also, exceptions may apply to tenants who receive a rent subsidy or rent exemption (see below).

 

Do I have the right to have a roommate?

If you live in a privately owned building, and

If you are the only person who signed your lease (for rent control: if you are the only tenant of record)

Then you have the right to share your apartment with one other adult not related to you, and that person’s dependent children.

You do not have a right to a roommate if:

you live in public housing or most subsidized housing, or

if more than two people have signed the lease, and your lease does not expressly give you permission to live with an additional person.

If you receive a rent subsidy (such as Section 8 or FEPS) or a rent exemption (such as SCRIE or DRIE), or if your rent is based on your income, most programs count what the roommate pays in rent as part of your income. Therefore, bringing in a roommate may make your income too high to remain eligible for the program. Check your program’s guidelines before taking in household members.

 

More than one person has signed my lease. Do I have the right to take in an additional person as a roommate?

If two or more people signed your lease (for rent control: if there is more than one tenant of record) you are not entitled to have any roommates—even if the cosigner is a family member. But if one or more of the tenants named on the lease (or one or more of the rent-controlled tenants of record) moves out, the departing tenant or tenants can be replaced by the same number of roommates. For example, if three people cosigned a lease and two of them move out, the remaining tenant may have two roommates.

 

I have no lease. What are my rights to have a roommate?

The roommate law allows certain tenants to have one roommate (see earlier for the criteria). Having a lease is not one of the criteria. However, if you do not have a lease (and are not a rent-controlled tenant), you are a month-to-month tenant, and the landlord can end your tenancy with 30 day’s notice. Therefore, you might want to get the landlord’s permission before bringing in a roommate. (This warning does NOT apply if you are a rent-controlled tenant. While rent-controlled tenants often do not have leases, the landlord cannot evict you without cause—so you are not at risk by following the roommate law.)

 

Do I have to inform my landlord that I have taken in a roommate?

You must inform the landlord of the name of a new roommate within 30 days after the roommate moves in, or within 30 days after your landlord requests that you provide the roommate’s name. Failure to notify the landlord that you have a roommate carries no statutory penalty.

 

Can I get my roommate’s name added to the lease? Or can I arrange to have my roommate take over the lease for this apartment if I move or die?

In rent-stabilized apartments, the landlord must add the name of a spouse to a renewal lease when requested. In all other cases, landlords are not obligated to add anyone’s name to any lease (whether rent-stabilized or not) including when that lease is being renewed.

Some family members (including non-traditional family members) who live in the apartment may be entitled to take over a rent-stabilized, rent-controlled, or Mitchell-Lama apartment and the lease by establishing succession rights when the primary tenant moves or dies. Where there is no family relationship, roommates do not have succession rights. (Read more about succession rights on Met Council on Housing’s website: metcouncilonhousing.org )

Roommates do not acquire any right to remain in the apartment if the named tenants move, die, or are evicted. They do not acquire any right to purchase the apartment under a cooperative or condominium conversion plan (unless you and your landlord give specific permission in writing).

 

How much am I allowed to charge my roommate for rent?

If you live in an unregulated (market-rate) apartment, there are no laws governing the maximum amount of money you may charge a roommate. However, if you charge your roommates a disproportionate share of the rent, it often creates bitterness and hostility. Also, there may be restrictions in your lease.

If you are a rent-stabilized tenant, you are prohibited from charging a roommate more than a proportionate share of the rent. This means:

* If you have one roommate, the maximum you can charge that person is one-half of the rent—even if that roommate’s bedroom or living area is larger or more desirable, or if they have access to more of the apartment.

* If you have more than one roommate, you must charge each roommate for his or her proportional share. This share is determined by dividing the legal rent by the number of people on the lease plus the number of roommates. (Example: if three adults share an apartment, each must be charged no more than 1/3 of the rent.) This number does not include the tenants’ spouses or family members, nor the roommates’ dependent children.

 

If I have a roommate, do I have to report his or her income on my SCRIE or DRIE application?

A roommate who is not a member of your family and who pays you money to live in your apartment is not treated as part of your household. You do not have to report that roommate’s income on your SCRIE or DRIE application, but you must report as income the amount of rent or other money you received from a roommate.

 

I live with a roommate, but my landlord is calling that person a “subletter” and is accusing me of illegally subletting the apartment. What can I do?

If your landlord accuses you of illegally subletting, or if your landlord begins legal proceedings against you based on such allegations, you are strongly recommended to consult an experienced attorney, even if your landlord’s allegations are false. The consequence of losing such a case can be eviction from your apartment.