Roommates

Can you have a roommate? If so, how many? Well, let’s look at your lease.

If you are New York tenant, you may find this paragraph in your lease, or something similar:

The Apartment may be occupied only by the tenant or tenants named above and by the immediate family of the tenant or tenants.

Perhaps the landlord has told you that your lease does not allow you to have roommates. 

It just goes to show you: beware of landlords waving obscure lease clauses.  It is ILLEGAL for a lease to limit occupancy of residential premises to a tenant and his immediate family.  Any such restriction is unenforceable as against public policy.  61 Jane Street Associates v. Kroll, 1984, 102 A.D.2d 751, 476 N.Y.S.2d 887, appeal dismissed 64 N.Y.2d 864. Thus, the roommate restriction above -- even if it is in your lease -- has no force and effect.

What does the law allow? According to Real Property Law section 235-f(3), any residential lease entered into by one tenant shall be construed to permit occupancy of "one additional occupant" (a roommate) provided that the tenant occupies the premises as her primary residence.  The law also allows the roommate's dependent children to live there.

So if there is one tenant on the lease, you can have one roommate.  What if two tenants are on the lease?  Then the total number of tenants/roommates living in the apartment is limited to two.  If one co-tenant leaves, the remaining tenant's family can have one roommate (plus the roommate's dependent children).

Nevertheless, the landlord may try to get around this by alleging that your roommate is a "subletter."  Well, if you are living with a person, what's the difference between being a subletter and a roommate?  Probably none.  If the roommate already has the right to occupy the apartment by law, he cannot be considered a subletter.  At least one court found that a paying roommate who occupies the tenant's apartment without landlord's consent is not an illegal "sublessee," but an "additional occupant" expressly permitted to occupy said lease premises pursuant to RPL § 235-f.  Vidod Realty Co. v. Colvin, 557 N.Y.S.2d 825 (N.Y. City Civ. Ct. 1989, Callender, J.)

Tenants with roommates must look out for two things.  First, you must always maintain the apartment as your primary residence.  Second, you cannot charge the roommate more than the roommate's proportionate share of the regulated rent.  This is a new code change, which possibly opens tenants up to being sued for profiteering. Having said that, most any residential tenant can have at least one roommate, regardless of what the lease says