Ask Sam: I'm month-to-month. Do I have the right to take a roommate that my landlord rejected?
I’m renting month-to-month in a small building. My roommate recently moved out, and I’m looking for a new roommate. I found someone, but my landlord turned them down. Can they move in anyway? Or can I just pay my share of the rent?
As a month-to-month tenant, you have fewer restrictions on getting a roommate, but also fewer protections from eviction, so proceed carefully, says Sam Himmelstein, a lawyer with the firm Himmelstein, McConnell, Gribben, Donoghue & Joseph who represents residential and commercial tenants and tenant associations.
Tenants with standard leases are protected by the roommate law, which grants them the right to share their apartment with another adult not related to them, and that adult’s dependent children. Under this law, if there are multiple tenants named on the lease, they can have multiple roommates, as long as the total number of roommates and tenants does not exceed the number of tenants listed on the lease.
In other words, if there were three tenants named on the lease and two of them left, the remaining tenant could have two roommates. The remaining tenant would not need the permission of the landlord to have these roommates move in—their only obligation would be to notify the landlord of the new roommates’ names within 30 days of their move-in date.
“The roommate law says that notwithstanding any clause in the lease, the tenant is permitted to have a roommate,” Himmelstein says. “In this case, there is no lease, so there’s no restriction on who the tenant can have live with them.”
In other words, as a month-to-month tenant you can have a roommate of your choosing, but they would not be considered tenants; you would need them to pay rent to you, and then you’d pay the full rent to your landlord.
However, since your landlord has already rejected one potential roommate, taking in another could go over poorly—and you have little protection from the landlord terminating your tenancy.
“The landlord could retaliate by seeking eviction, and serve you with a termination notice,” Himmelstein says. (Note that legally speaking, if you’ve lived in the apartment from one to two years, you’re entitled to a 60-day notice, and if you’ve lived there longer than two years, a 90-day notice of eviction.)
If the landlord does this, Himmelstein says, “You could argue that it’s retaliatory, and that your landlord is trying to evict you because you exercised your right to have a roommate. This is hard to prove, but you could argue it in court.”
And if you prevailed in court, the case would be dismissed and you (and your roommate) would be allowed to remain in the apartment for a year.
“You don’t have the same restrictions as tenants with standard leases, but you also don’t have the same protections,” Himmelstein says. “You can have whoever you want move in, but the landlord can still try to evict you.”
One thing you should avoid doing if you can is not paying the full rent—you’re considered liable for the entire apartment’s rent as long as you’re the only tenant living there, and withholding it definitely gives the landlord reason to take you to court for non-payment of rent.
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Sam Himmelstein, Esq. represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts, and many other issues. He is a partner at Himmelstein, McConnell, Gribben, Donoghue & Joseph in Manhattan. To submit a question for this column, click here. To ask about a legal consultation, email Sam or call (212) 349-3000.