If you can't find new roommates, you could be held liable for the departing tenants' rent. 

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I rent an apartment in Brooklyn with three roommates. Two lost jobs during the coronavirus pandemic and decided to move out. What are my options? What can the landlord do if the remaining roommate and I don’t pay their rent?

You and the other remaining tenant can try to find roommates to replace the tenants who left, says Sam Himmelstein, an attorney with the law firm Himmelstein, McConnell, Gribben, Donoghue & Joseph, who represents residential and commercial tenants and tenant associations. 

New York City's roommate law allows you to share the apartment with someone who is not on the lease. "This means that you can substitute roommates for tenants," Himmelstein explains, "so if there are four tenants on the lease and two move out, you can get two roommates to replace them.”

If you’re able to find new roommates, speak to your landlord about entering into a new lease, in order to remove the names of the previous tenants, or substitute the new tenants for the departing tenants on the lease. To enter into a new lease, you need to get the landlord’s consent, as well as have the old tenants surrender their leases.

However, if you run into issues finding new roommates—a possibility, given that fewer people want to move during the Covid-19 pandemic and some buildings restrict moves—and can’t make up the rent of the departing tenants, you may end up in a tough position.

“You’re stuck there with the apartment’s rent,” Himmelstein says. “Courts are reopening next week and allowing filings, so you could be sued in housing court for nonpayment of rent.”

In such a lawsuit, the landlord would have to name all four tenants on the lease, and you’d all be considered jointly and severally liable for rent payments, a legal term that means in addition to all tenants being held liable for the rent, each individual tenant could also potentially be held liable for the whole rent.

“If you can’t settle the case in housing court, the court could enter a judgement against all four tenants for back rent, which would be both a money and possessory judgement,” Himmelstein says.

That means that if the missing rent isn’t paid, there could be an eviction. It makes no difference to landlords or the courts who pays the owed rent, and you can’t defend yourself on the grounds that there are only two tenants left in the apartment who can’t pay the full rent.

“The landlord could try to collect money from any or all of the tenants, but if the departing tenants are out of state, it will be harder to collect from them,” Himmelstein says.

Unfortunately, the burden to pay up could then fall on you—a dilemma many NYC tenants are now facing.

Time is on your side for now, though, as the courts are permitting only limited and remote appearances, allowing long postponements, and exercising more leniency in general. There is also a moratorium on evictions in NYC through the end of August for tenants who qualify for unemployment or can demonstrate they have been impacted by the coronavirus.

“Every tenant called into housing court will get a postcard they can answer by calling the clerk’s office, and be given the name of a legal services office to represent them,” Himmelstein says. “Or the tenant can retain private counsel. If you don’t answer or appear, there will be no default judgment [which gives the plaintiff what they want if they defendant doesn’t show] entered against you.”

Tenant advocates are pushing back against reopening the courts, on the grounds that allowing landlords to file evictions now is inhumane and a public health risk. A day of action against evictions is planned for June 22, and lawsuits against the reopening of housing court are pending.


Ask Sam: If I can't pay rent, what happens when the eviction moratorium ends? (sponsored)

Ask Sam: I had to stop paying rent. What will happen next? (sponsored)

Ask Sam: My wife and I have been laid off. What happens if we can't pay our rent? (sponsored)

Ask Sam: What happens if you have a case pending in NYC housing court during the coronavirus crisis? (sponsored) 

Read all our Ask a Renters Rights Lawyer columns here.

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.

Alanna Schubach

Contributing writer

Contributing editor Alanna Schubach has over a decade of experience as a New York City-based freelance journalist.

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