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Ask A Lawyer

We Asked a Lawyer How to Kick Out a Shitty Roommate

Living in New York City can be a nightmare, so it's best to know your rights.
Screengrab from Bridesmaids. Thumbnail photo by turkeychik via Flickr Creative Commons

Anyone who's lived in New York City has a housing horror story. Mine starts about two years back, when I was living in Greenpoint, Brooklyn, with a couple of guys who wanted to move in with their girlfriends at the end of our lease. I went away on a weekend trip and came back to find that they had cleared out the place a whole month early––or so I thought. As such, I started doing what human beings often do when they live alone, which is to say I walked around naked, had conversations with myself, and never bothered to shut the bathroom door.


When I brought home boxes to pack up my own stuff, I decided to peek in the other bedrooms to see if anything had been left behind. What I found was a woman just getting out of the shower. After slamming the door and hyperventilating in the hall a little bit, I was eventually confronted in broken English about being a peeping Tom. Through hysterical tears, the strange woman eventually told me that my roommate had given her permission to squat in his room, but told her to keep a low profile––which helped explain why the room was full of stuff like orange juice containers and takeout boxes. Very long story short, she refused to leave, which meant I had to ride out a week and a half under the same roof as her despite thinking she was an unhinged psychopath.

I've always wondered why that woman ended up stealing a jar of quarters and a disposable camera from me before leaving, and also what my rights were as a non-lease holder trying to kick out a terrifying squatter. So I called up Andrew Scherer––an expert attorney at New York Law School and author of an actual treatise on tenant laws in the city. He quickly told me I had no standing in that situation, but was kind enough to answer a bunch of other questions about the nuts and bolts of renting and living in New York. Here's what he said.

VICE: I don't ever look at the leases I sign. If someone's at least scanning, what are the red flags they should look for?
Andrew Scherer: The market is so tight, and leases are generally so boilerplate. You should read the lease, of course, but there's generally not really much you can do about it. There are, however, legal rights you can't get rid of. You can't sign away your right to a habitable apartment. You should check to see if the apartment is rent stabilized, because units that are have many more legal protections than other apartments.


Can you explain what a rent stabilized apartment is?
The general rule––although there are many exceptions to it––is that buildings that were built before 1974 and have six units or more in them are rent stabilized, which means there are limits on the initial rent that can be charged and on how much it can go up every year. There's an entity called the Rent Guidelines Board that sets the limits on rent increases for stabilized units. Almost a million apartments are covered by that law [in NYC], but the apartments that go on the market don't tend to be stabilized because people don't give up those units easily and because when people move out of those units, landlords often either find legal ways to get the unit out of the rent stabilization system or illegally claim that the units aren't covered by that law.

If a unit is covered by the law, that information should be in what's called the rent stabilization rider to the lease, which is supposed to be provided when you sign. If you're a tenant and are about to sign a lease and think that it's a good enough deal for you, then you can sign the lease. If the apartment turns out to be rent stabilized and the rent in the lease is illegal, just because you agreed to the illegal rent doesn't mean you will have to pay it. You can bring a complaint if you find out that it's rent stabilized, and the landlord could be nailed. So in other words, you're not waiving your rights in most cases by signing a lease. You can contact New York State Homes and Community Renewal about the rental history and see whether your apartment is covered by rent stabilization.


What if your apartment is sweltering or freezing or otherwise uninhabitable and the landlord refuses to do something about it?
If you have a complaint about the conditions of the unit, it's very likely also a violation of New York City's housing code, and for that you would start by calling 311 to complain to the city's housing agency, the Department of Housing Preservation & Development. If they think the problem is serious enough, they'll come and send an inspector who will place a violation on the house and notify the landlord, who then has an obligation to fix the violation. The other thing I would say about that is if you're in a building suffering with no heat or hot water or some other serious problem like that, you know the other tenants in the building are suffering as well. And it's always more useful to form a tenant association and to try and work together. You can certainly approach the landlord alone, but if the city's housing agency sees that 20 people are making calls to 311, they're much more likely to act quickly.

A person who's living in the apartment and is not on the lease is there only at your will, basically.

If you had an informal agreement with a friend who was living at your place, do you need to have them sign a lease?
No. You don't have to have a roommate sign a lease. A state law limits how many roommates you can have. You can have immediate family there, and you can certainly have one roommate. The law is written in a funny way––you're obliged to tell the landlord who's living in your apartment within 30 days of somebody moving in, but if you don't, he or she has to ask you for the names of everybody living in the apartment, and you have 30 days from that day to answer. As long as you have roommates who don't violate the roommate occupancy law, then you're fine. You basically get a right to have one roommate. A lot of landlords just don't care if you have roommates as long as you're paying the rent on time. But if the apartment is covered by the rent stabilization law, you can't charge the roommate more than the proportionate share of the rent. So if you have a $2,000 rent, you can't charge a roommate $1,700 and pay $300 yourself.


So what if they turn into a dick? Can you evict them without a lease?
You can. It's a real pain in the ass, but you can go to court. You'd probably have to get a lawyer and get an eviction notice. A person who's living in the apartment and is not on the lease is there only at your will, basically. If you don't want that person there and you ask them to leave and they don't, you can bring a court action. It's not easy or pleasant, but you absolutely can do it.

What if they're just crashing on the couch?
Same thing. If you have one roommate and you've decided to use the living room as a bedroom and you're not violating the occupancy laws––and there's no place including a studio where you're not allowed to have at least two people––then that person is just a roommate. But let me just say that if someone is crashing on your couch or staying in a bedroom short-term, you have to be home at the time. If you're not, the guest has to be there for more than 30 days. Otherwise, it falls into that short term occupancy, or "Airbnb law" and you could be subject to stiff fines if the city finds out.

Let's talk about that. If you were staying at one of these illegal hostels the city is targeting, and they caught wind of it, would you immediately become homeless?
Yes, but it might not be immediate. If you're a long-term tenant and the city wants to shut your place down, they would issue a vacate order. You might be given time to get out, but you wouldn't have any long-term right to stay in the place. Let's say it's a warehouse and it's zoned commercial or industrial and doesn't have any of the safety measures that apartments are supposed to have, so it's violating the housing code. The city could tell you to get out immediately depending on how dangerous they think it is.


OK, another thing I've always wondered: How long could you go without paying rent before being forcibly removed from the apartment?
You technically have to pay rent when it's due. If your landlord wanted to bring you to court right away and your rent is due on the first of the month, then the landlord could do a demand for the rent and start the court proceedings within several days. That doesn't mean you get evicted right away, because you have the right to go before a judge, and you might not be evicted at all if you have legitimate defenses to the eviction case or if you can pay the rent, even after the court decides you do owe it. But any court case could go on for a while. People seem to think they need to be two or three months behind in rent before a landlord could start a case, and in fact most landlords don't bring a proceeding just because a tenant is a few days late, but they could. Overall, if everything went as smoothly as it possibly could for the landlord, and you did nothing to defend yourself, a case in theory could take maybe about a month. But it never goes that fast.

Something to note: When you get sued for eviction, even if you win or settle the case, your name gets put onto a database that these private organizations maintain of eviction cases that have been brought all over the country. And you're basically put on a blacklist, which makes it very hard to rent again.

So what if you can't get on a lease? Are you liable to just be thrown out of a new apartment whenever?
You have what's in theory called a month-to-month lease, in which case the landlord must give you 30 days notice of a rent increase or 30 days notice to get out.

What's the best way to break a lease?
So under New York law, if you want to move out in the middle of the lease, you're still liable for rent for the remainder of the lease. And the landlord doesn't have an obligation to re-rent it. However, the way the real estate market is right now, it's very easy for landlords to re-rent. What you would want to do is make it very clear that would be easy to find someone to take your place. Because if the landlord was to turn around and try to sue you for the third year of the three-year lease when you were no longer living there, you would want to document the fact that you put it on Craigslist and you showed the landlord that you got five people who would be willing to pay at least as much rent as you would be paying. You'd build a record in case you needed to defend yourself. There are some states in which the landlord has an obligation to go and re-rent the unit, but in New York that's not the case. We have a bad law on this issue here.

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