Ask Altagracia: My roommate stopped paying rent and won’t move out. What legal action can I take?
- With a lease in place, a roommate can be served a 14-day notice to pay or leave
- Accepting rent after your roommate receives an eviction notice will undermine your case
In order to remove a roommate through the courts, you will need to provide evidence you have the right to be in the apartment.
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My roommate stopped paying rent and won’t move out. What legal action can I take?
If you get a roommate who stops paying rent, the legal action you take in New York City will depend on whether you have a lease. “If you have a lease in effect, the roommate can be served a 14-day notice to pay or leave the apartment and you can file a rent non-payment case in housing court,” said Altagracia Pierre-Outerbridge, attorney and founder of Outerbridge Law representing residential tenants, condo owners and landlords.
A non-payment case seeks payment with the threat of eviction if rent isn’t paid. If there is no lease in place, then you need to give the roommate a longer termination notice and file a holdover case, which seeks possession of the apartment.
“The length of the termination notice if there’s no lease will depend on how long the roommate has been in the apartment,” Pierre-Outerbridge said. If they’ve been there for less than a year, the notice period is 30 days; from one to two years, it is 60 days; and for more than two years, the requirement is 90-days’ notice.
When there’s a lease in place
In order to remove a roommate through the courts, you will need to provide evidence you have the right to be in the apartment. It’s not simply enough to prove your roommate should not be there, you need to prove to the court you yourself have the right to live in the apartment.
“This means providing the original lease signed by you and the landlord,” Pierre-Outerbridge said.
If your landlord did not provide a copy of the fully executed document, you will need to get it from them.
The next step is to serve legal papers to inform the roommate a case is being brought against them.
“Since you are a party in the case, you cannot do this—it needs to be done by a licensed process server or another qualified professional,” Pierre-Outerbridge said.
One caveat is if you seek eviction through a non-payment case and the roommate then pays everything owed, the case is dismissed. However, non-payment is the most practical way to evict someone who is not paying their rent. According to Pierre-Outerbridge, most cases result in a settlement with 14-days’ notice that a marshal will remove the non-paying roommate from the apartment.
“Within those 14 days, most people will leave because they’d rather move out than be thrown out,” she said.
If you have no lease
If you do not have a lease or it is a month-to-month arrangement, the eviction notice period will be longer—up to 90 days, depending on how long the roommate has been in the apartment. Instead of a non-payment case, however, you will need to file a holdover proceeding.
“Even though you want payment, if you file a non-payment case when there’s no lease in place, the case will be dismissed,” Pierre-Outerbridge said. If the holdover case is successful, you will be able to claim rent up until the time they vacate.
Another complexity can be introduced if you give your non-paying roommate notice to get out but then accept rent from them. “Accepting rent in this way creates a month-to-month tenancy and your legal case against them will be dismissed,” Pierre-Outerbridge said.
How to avoid roommates who don't pay
It’s very important you do not lock your roommate out of the apartment. “This is illegal and the roommate could sue you,” Pierre-Outerbridge said.
To protect yourself from getting into these types of complex legal situations, ask your roommate to have a guarantor. This is an agreement with someone chosen by the roommate, who typically lives in the tri-state area, and who agrees to pay the rent if they default.
It’s also important to have a written lease in place and keep a copy of the fully executed agreement somewhere handy.
“If you ever end up in court with a roommate situation gone bad, everything that streamlines the process is to your advantage,” Pierre-Outerbridge said.
Altagracia Pierre-Outerbridge, Esq. is the owner of Outerbridge Law P.C, focusing primarily on tenant representation. The firm represents all sides in landlord-tenant litigation and transactional matters such as month-to-month holdovers, nuisance cases, licensee cases, harassment claims, repair cases, tenant buyouts, succession claims, DHCR overcharges and rent reductions and more. Pierre-Outerbridge has 15 years of experience litigating in Supreme, DHCR, and Housing Court. To submit a question for this column, click here. To contact Outerbridge Law P.C. directly, call 212-364-5612 or 877-OUTERBRIDGE, or schedule a meeting today.
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