Your Rights As A Roommate

Your Rights AS A Roommate

Are you sure that you are a roommate?

The word roommate is used to describe many types of living arrangements, which can cause confusion and misunderstanding. Your legal rights change depending on the type of arrangement you have. In this document, a roommate means: a person who is not named on the lease of the apartment he or she shares with another person.

The term roommate is often confused with these other types of arrangements:

Subletter: A roommate is different from someone who sublets an apartment. You are a subletter if you live in an apartment temporarily while the tenant named on the lease is away for a period of time, but intends to return. (If you are renting an apartment from the prime tenant without the knowledge or consent of the landlord, your sublet may not be legal.) Read more about tenants' right to sublet.

Co-tenant: If your name is on the lease, and you share the apartment with one or more people whose names are also on the lease, you are a co-tenant, and have different rights than those explained in this fact sheet.

Family members: If you live in an apartment with a family member, and are not on the lease, you have similar rights to roommates. However, when determining the right of tenants to have an additional roommate, certain family members are not counted. Also, certain family members may have succession rights (the right to take over the apartment of a family member they live with who moves or dies) whereas roommates do not have succession rights. See more below, or read our info sheet on succession rights.

If you are the primary tenant for an apartment (the lease, if one exists, is in your name) and you want to have someone live with you, read our fact sheet on Your Right To Have A Roommate.

Legal Disclaimer:

The information contained on this web page does not constitute legal advice and must not be used as a substitute for the advice of a lawyer qualified to give advice on legal issues pertaining to housing. For more, visit our page on Finding a lawyer.

This information pertains only to tenants living in New York City.

Many of your rights depend on the type of housing you live in or your type of tenancy. You may be subject to different laws and have different sets of rights than even neighbors in your own building. Learn which rights and responsibilities apply to you.

 

Do roommates have rights?

Roommates who are not named on the apartment lease have some limited rights, but their tenancies are among the most vulnerable. Broadly, roommates are covered by laws that protect tenants from being illegally evicted (see below) and that ensure tenants access to basic services (such as water and electricity). Also, roommates are entitled to enforce provisions of the lease or roommate agreement with the primary tenant of the apartment, so long as the agreement does not violate applicable laws nor the primary lease for the apartment.

 

What if the prime tenant I rent from evicts me, changes the locks, prevents me from entering, or moves out my belongings - or threatens to do so?

If you are a roommate, you are protected against illegal evictions just like everyone else in New York City. The laws regarding evictions apply if:

  • you have lived in the apartment for at least 30 days (whether or not you have ever paid rent), or
  • you have a valid lease (including a roommate agreement) signed by both parties, or
  • the prime tenant of the apartment accepted rent from you. (Note: you must be able to prove that you paid the rent. Receipts are better than nothing, but cash payments can pose problems. The best proof of payment is a canceled check or receipt from a money order, which can be traced if necessary.)

If any of the above apply to you, the prime tenant of the apartment must start an eviction case against you in court to legally remove you from the apartment. You must be served court papers, and you have a right to appear in court and present defenses. If a warrant of eviction is ordered by a judge in the case, the eviction must be carried out by a marshal or sherriff. It is illegal for anyone else - including the prime tenant of the apartment - to:

  • remove you or your belonging from the apartment, or
  • prevent you from entering the apartment or your room, or
  • change the locks to the apartment entrance or to your room without giving you the new key, or
  • cut off essential services that you do not control - like hot water, heat, or electricity

To learn more read our information sheet on Illegal Evictions.

Be warned: roommates are vulnerable to unexpected evictions when the prime tenant of the apartment is evicted through legal means by the landlord. Sometimes, prime tenants do not inform their roommate of eviction proceedings. When prime tenants are legally evicted, the order of eviction usually applies to all occupants of the apartment - including roommates. See below for more about this process, and how to protect yourself in such cases.

 

What happens to me as a roommate if the prime tenant I rent from is evicted? How can I protect myself from being thrown out along with him/her?

If the prime tenant of the apartment is legally evicted, the court order usually allows the eviction to be carried out against all occupants of the apartment, including roommates. Sometimes roommates are unaware of the eviction case against the prime tenant.

If court papers are served on your apartment, or if you suspect that your roommate is facing an eviction but not informing you, it is advisable to visit the Housing Court and search to find out whether there is an open eviction case against the prime tenant. You may be able to get assistance in finding out if such a case exists from the advocates at Housing Court Answers - a nonprofit organization that staffs information tables in the New York City Housing Courts.

If a marshal's notice or other court papers are served on your apartment, you can to go to housing court and ask to temporarily delay the eviction. You can file an "Order to Show Cause" - which is a request to have a hearing in front of a judge. You will have to know the Index Number for the eviction case. The Index Number will be written on the Marshal's Notice, as well as all other official court papers. You can also look up the Index Number on the public access computers in the Housing Court, and you may get help in doing so from people at the information tables run by Housing Court Answers. The judge may or may not give you a chance to present your case - and to get extra time to move. Unfortunately, judges do not always delay the date of a marshal eviction simply because a roommate was unaware of the court case.

If you are legally evicted by a marshal, you can go to court to file an "Order to Show Cause" and request that you be restored to the apartment, or be permitted to take your personal belongings. If you were unaware of the eviction proceedings entirely until the marshal arrived to lock the door, explain this to the judge. Even if the judge does not grant you permission to return to the apartment, you do have a right by law to recover your personal belongings. If your belongings are still in the apartment, the judge can order the landlord to give you temporary access to move out your belongings (and such orders can be enforced by the police, if necessary).

 

Is my roommate situation legal? Is the person I rent from allowed to have me as a roommate?

New York State law protects the right of tenants in privately-owned buildings to have a roommate under certain conditions. If those conditions are met, tenants do not need the permission of the landlord to have an additional occupant, and are legally allowed to have a roommate even if their lease prohibits it.

The law states that so long as the apartment does not become overcrowded, tenants have the right to share their apartments with immediate family members (there is no limit in the law as to the number) plus one other unrelated adult, and that person's dependent children, if: 

  • the tenant lives in a privately-owned building, and
  • only one person has signed the lease (for rent control: if there is only one tenant of record)

Tenants do not have a right to a roommate if:

  • they reside in public housing or most subsidized housing (whether or not the roommate is being charged rent or has a source of income), or if
  • more than one person has signed the lease (including spouses, children, or other family members) and the lease does not expressly give the tenant permission to live with an additional person

If the tenant is receiving a rent-subsidy or a rent exemption, taking in a roommate may put them over-income for the program and in violation of the program's rules.

 

Is my roommate agreement valid? Can I enforce the rights in this agreement as a lease?

If a roommate agreement has been signed by both the named tenant and the roommate, it serves as a contract and operates similar to other leases. It is valid to the extent that it follows applicable laws, and that it does not violate the overriding lease the prime tenant has with the owner of the building (or of the unit, in cases of condominiums and co-ops).

For example, if the agreement says that the roommate will pay $500 per month for the room for 6 months, the named tenant cannot move to evict the roommate or to raise the rent for the room during that six month period, except for cause (such as failure to pay the rent, substantial breach of the contract, or for being a nuisance). In this type of scenario, the roommate's rights are similar to those of an unregulated (market-rate) tenant who has a lease.

 

What rights do I have if I don't have a written agreement with the prime tenant?

If you do not have a written agreement with the named tenant, or if you continue to live in the apartment beyond the length of time of your last agreement, you are a month-to-month roommate. The prime tenant can change the terms of your argreement (including the amount you are being charged) or ask you to leave upon 30 days written notice. As a month-to-month roommate, you can give your 30 day notice at any point. If you do not leave, the primary tenant must take you to court to have you legally evicted.

 

Is there a maximum amount of rent that I can be charged as a roommate?

The type of apartment you live in determines whether or not there is a limit to the amount of rent that you can legally be charged as roommate.

If you live in an unregulated (market-rate) apartment, there is no limit to the amount of rent that you can be charged as a roommate. Even though it may be unfair to charge roommates a disproportionate amount of rent for their part of the apartment, it isn't necessarily illegal to do so.

If you live in a rent stabilized apartment, you cannot legally be charged more than a 'proportional share' of the rent - up to half of the total rent for the apartment. Even if you occupy a larger bedroom than the primary tenant, the most you can be charged is half of the total rent. In cases where there is more than one roommate, the share of the rent should be divided by the number of roommates. Note that New York's Roommate Law only gives the right of tenants to have one additional roommate except when the lease for the apartment permits additional roommates.

 

As a roommate, how can I find out if my apartment is rent-stabilized, and if so, what the legal rent is? How can I file a rent overcharge complaint?

You can find out whether your building contains rent-stabilized apartments by going on the New York State Homes and Community Renewal (HCR) website and using the Rent Regulated Building Search, or by visiting the website of the Rent Guidelines Board and checking the Rent Stabilized Buildings Listings. However, you won't be able to use these resources to check if your particular apartment is rent-stabilized (as the apartment you live in may have been de-regulated) or what the legal rent of your apartment is.

If you believe that you are being overcharged as a roommate, you can investigate the matter with HCR by filing: Form RA-89: Tenant's Complaint of Rent and/or Other Specific Overcharges in Rent Stabilized Apartments. You will need to show proof of the payments you have been making to the prime tenant. (Canceled checks or money orders are the best proof; you may have a problem if you paid in cash, but receipts are better than nothing.) If HCR agrees that you have been overcharged, you can get an order for the prime tenant to refund you the amount of the overcharge – and in some cases, treble damages if the overcharge is found by HCR to be fraudulent. Be advised that you must inform the prime tenant of your rent overcharge complaint, which may cause the prime tenant to ask you to move out. However, you can still collect the overcharge even if you no longer live in the apartment. Make sure to update HCR when your address changes.

 

The landlord of the building objects to the prime tenant specifically choosing me as a roommate. Is that legal?

If the prime tenant has a right to a roommate (see above: "Is my roommate situation legal? Is the person I rent from allowed to have me as a roommate?") then the landlord must have a valid reason for objecting to you as a roommate.

Reasonable objections may be:

  • you have a criminal history
  • you have caused problems at the building
  • someone in the building has a restraining order against you

It is illegal for the building's owner to object to you based on a form of discrimination that is outlawed by law. For a list of protected classes, consult the New York City Human Rights Commission's website.

The landlord of the building is not entitled to know your social security number, to obtain a copy of your credit history, or to know other personal information about you. The landlord cannot force you to prove your ability to pay your share of the rent, or refuse to allow you to be the roommate of someone in the building based on a belief that you cannot afford to pay your share of the rent to the prime tenant.

 

I paid my rent for the room to the prime tenant - but the prime tenant did not use this to pay the rent for the apartment, and now we're facing eviction. Can I get my money back?

Recovering money that you paid to the prime tenant will not necessarily be easy - even if this money wasn't used to pay the rent for teh apartment. If you were able to live in the apartment for the time you paid rent, many courts may consider you to have gotten what you paid for. If you want to seek a refund or damages, you would need to do so by bringing an action in Small Claims Court or Civil Court.

 

How can I get back my security deposit from the prime tenant?

If the prime tenant of the apartment does not return your security deposit within a reasonable amount of time after you move out, and you feel that you are entitled to this money, your medhod of recovering it is similar to that of any other tenant. Read more about the process on our information sheet on Security Deposits.

 

Can I be charged extra for utilities and other services?

Your roommate agreement can include obligations to pay a portion of the apartment's utilities, cable, phone, internet, or other bills. In a rent-stabilized apartment, where there are restrictions on the amount of rent that can be charged to roommates, these charges should not be included in the rent, and should be paid for separately.

 

As a roommate, can I have my name added to the lease of the apartment?

If the person you rent a room from wants you to be added to his/her next lease, you both can make this request of the landlord, but the landlord is not obligated to honor the request. Roommates do not have any rights under the law to be added to a lease, and landlords cannot be forced to add anyone's name to a lease, with one exception - in a rent stabilized apartment, the landlord must add the name of a spouse to a renewal lease upon request.

If your landlord agrees to add your name to the next lease:

In an unregulated (market rate) apartment, all terms - including the occupants - can be renegotiated when a new lease is being signed. The new lease is not valid until it is signed by all parties.

If you live in a rent-stabilized apartment and the landlord agrees to add your name to the next lease, it is considered a "vacancy", even though no one is moving in or out. That means the landlord has the right by law to increase the legal maximum rent for the apartment by applying a "vacancy allowance", also known as a "vacancy bonus". The law currently permits landlords to raise the rent by 20% for a two-year renewal, or slightly less for a one-year renewal, plus 0.6% for each year since a vacancy allowance was last applied to that apartment. For more on this, check the Rent Guidelines Board's Vacancy Lease Calculator.

 

As a roommate, can I take over the lease if the primary tenant of the apartment moves away, dies, gives up the apartment, or is evicted? Am I eligible for succession rights?

In rent stabilized and rent controlled apartments, certain family members who have been living in apartment have the right, under certain conditions, to take over the tenancy when the primary tenant moves or dies. The process is referred to as Succession Rights. Non-relatives may have succession rights rights as "nontraditional family members", but roommates who did not establish a family or family-like relationship with the primary tenant do not have these rights. That means, if you aren't related to the primary tenant and you both led independent lives (other than sharing the apartment and related expenses) succession rights do not apply. For more on this subject, read our information sheet on Succession Rights.

Unless succession rights apply, as a roommate you do not have special rights to take over the lease to the apartment, no matter how long you have lived there. This applies even if you are willing to pay a rent increase. Tenants do not have the right to transfer their leases to another person, so any arrangement for you to take over the apartment must come through a negotiation between you and the landlord of the building.

If primary tenant in the apartment plans to move away, has already moved away, or has died, you can approach the landlord and request a new lease under your name. Landlords need not give any preference to roommates when re-renting the apartment.

Be on alert if the prime tenant still lives in the apartment and the landlord approaches you with an offer to rent you the apartment. Landlords sometimes try to turn roommates on each other when seeking to evict a tenant, and will ask roommates to testify against primary tenants. The promises landlords make in these situations are often times unenforceable, and if the primary tenant is evicted you will be too. You cannot be given rights to the apartment while it's occupied by someone else, so ny agreement to rent made prior to prime tenant moving out or being completely evicted may not be valid - even if it is signed by you and the landlord.

In unregulated (market rate) apartments, when the current lease expires, the next lease can be entirely renegotiated. The landlord is not under any legal obligation to renew that lease or offer a new lease to anyone - including any occupants of the apartment, whether named on the prior lease or not.