Guests

[fnbdave]

When does the law consider a guest a roommate or additional occupant?

I live in a rent stabilized apartment with one roommate but his friend has been staying with us for 3 months now and has some of his mail coming there now too. He is looking for an apartment but hasn;t found one yet. How long can he stay with us?

[lappert]

Well we're not aware of any specific time limit, but it appears you're taking a chance - especially with the mail. Have him send the mail to general delivery and he can pick it up at the post office. It's not really a problem until the landlord makes it a problem, but be careful. Also, have him keep a record of where and when he's looking for a new place, so you can claim it's an ongoing search. Take other precaustions so everyone involved knows he's just a temporary guest.

[MikeW]

Actually, it's too late. Legally, at this point he's considered a resident. Once he's there thirty days, if you wanted to kick him out, and he refuses to go, you'd have to go to housing court and get an eviction.

As far as the landlord is concerned, there is one big question: Is the 'official' roommate on the lease, or not. I believe that for each person on the lease, the LL has to allow one more to reside in the apartment. That isn't all of it. There are restrictions of how many people can be in a certain number of rooms and amount of space. But if the both the original poster and their roommate are on the lease, and the apartment is big enough (I think a one bedroom would do), the LL can't say anything about the third person. You might actually push him to pay rent. If only the poster is on the lease, they LL could go after him.

[fnbdave]

OK, the landlord has just given me a notice to cure which says i have illegally sublet my apartment to my roommate and his friend. Now I am entitled by the law to have my roommate there so thats not going to give me a problem I assume, but how do I prove that the guest is there only till he finds an apartment? By what the previous poster said he is now legally considered a tenant because he has been there longer than 30 days? Can I just deny that? How can they prove he has been there for over 30 days? It's a big building. I told him to start changing his mail to a PO Box.

[lappert]

You should be a bit more clear. From your posts I gather your original "roommate" is just that, a roommate who is not on the lease and you are the sole person on the lease. If you are residing there yourself (which I assume you are), then you are not subletting and the owner's housing court case (you're just at the Notice to Cure stage) should fail simply because the grounds have been misstated. Make a motion to dismiss for failing to state a cause of action (i.e., you're not subletting). You have a right to have (at least) one roommate who is not one the lease, plus members of the roommate's family (as well as members of your family). See the Real Property Law section 235 for this - commonly called the Roommate Law or Live-in Lover Law (do a search for it on TenantNet - or I think the entire Real Property Law is also on TenantNet. Do the research. On the other hand, if the gyest is unrelated to either of you, you might be out-of-bounds. THe owner would need to amend his petition or start a new case claiming you are violating the RPL. Either way, it's curable now or usually the court will give a tenant time after a judgment against him. But don't wait that long -- get the guy out. Yes, there are other laws related to occupancy (too many people for the space) and there are provisions where a roommate can't be forced out without court action (he would have rights as a licensee in which you would need to commence a licensee proceeding to get him out). But that's assuming he doesn't want to leave. Best thing is to get the guy somewhere else and then you're cured.

[Cranky Tenant]

I'm not a lawyer but I would imagine the difference between a roomate, sublet or guest, is that a guest usually doesn't pay rent. Seems there would be some obligation on the LL's part to demonstrate that you're charging your guest something before he can call him either a roomate or a sublet. As long as you're not breaking any laws, or disturbing the neighbors, who you have there, for how long, and at what hours really isn't any of his business.

[lappert]

That's a good point -- that the guest might not have paid any "rent".

[fnbdave]

I am the sole person on the lease and I pay the rent with my check like I always have for the last 20 years. I'm a very quiet tenant who has never disturbed a fly and I am shocked and appalled that the LL would do this to me. What is this world coming to?

Thanks for all your help!

[Cranky Tenant]

Back in the old days when individuals could afford their own apartments, and still have a few bucks left over, it wasn't uncommon to have a spare room, or spare bed just for guests. People could go to Europe can allow a "guest" to stay in their apartment watering the plants, feeding the cats, checking the mailbox, for months at a time without getting served with an eviction notice. People who live in co-ops and condos can have house guests. Why should tenants be denied the same right?

[MikeW]

I don't think the issue here is that the guest is or isn't paying rent. The issue is that the prime tenant now has more occupants in the apartment than the law allows. This is curable. An interesting side issue is that to cure the condition, the prime tenant may have to go to court and get an eviction for the guest. If the prime tenant has to answer the LL complaint, will the judge consider it enough that the tenant is going through the procedure to get rid of the guest, even if that procedure may take a few months. Or is the fact that the guest is still there, pending the eviction proceding, enough to get the prime tenant evicted?

As for Cranky Tenant's post:

1). The stakes weren't as high as they were now. If an LL gets an apartment back, he can now buy his apartment's freedom. That's a strong incentive go get rid of stabilized tenants, so nothing slides anymore.

2). Stabilized tenants have been know to flout the rules, and use the apartments for their own profits. For the LL it's very hard to tell the difference between a 'guest' and an illegal sublet.

[TenantNet]

It's an issue because it lends credibility that a person is a temporary guest if he/she is not paying towards the rent. In most cases, a roommate would be sharing the rent. It's just part of the equation, but one which has some weight.

[Cranky Tenant]

Originally posted by MikeW:
I don't think the issue here is that the guest is or isn't paying rent. The issue is that the prime tenant now has more occupants in the apartment than the law allows.

The LL may not like having three people in the apartment but there's no indication that there are more people in the apartment than the law allows. I believe it was Lilly who pointed out some time back that the law requires at least 80 square feet per person. Presuming this "one bedroom" apartment is at least 240 square feet, less than the average studio, three people would be perfectly within the limits for such an apartment.

[TenantNet]

I don't think he was referring to occupancy standards (i.e., so many people per square feet). I think he was referring the RPL sec. 234 -- the roommate law that says a tenant (and the tenant's family) can have an additional occupant (the roommate and the roommate's family). This law gets murky in a lot of scenarios. While some have said you are allowed at most one roommate, and no more -- we've seen other cases that aren't clear on this. Theoretically a LL could commence a holdover if there are two roommates (unrelated occupants not on the lease) because it supposedly exceeds the allowable on. While most would agree there should be some limit so a person isn't running a hotel, what would happen in a three bedroom unit that you might find in the outer boroughs? Would it make sense to limit the tenant to just one roommate? College-age kids often get several in one apt. And then there's the issue of a roommate's right not be be evicted without process. Roommates might not have tenancy rights, the prime tenants must still commence licensee proceedings. A rule of thumb is that a person acquires tenancy rights after 30 days -- not sure at which point a roommate acquires the right to not be put out on the street without court process. But in this case the original poster described the person as a guest who is looking for his own place, just having a hard time. So the last issue is probably not an issue here. Sounds as if the LL's case would fail if he hangs his hat on subletting -- the prime tenant is still there.

[MikeW]

I thought that the rule was that for each person on the lease, you could have one addtional (unrelated) roommate. I had asked the original poster if his roommate (as opposed to the guest) was on the lease. If the roommate was, the long term guest would be okay. But since the roommate isn't on the lease, the guest could be a problem.

[consigliere]

Unless the lease grants greater rights, the Roommate Law (Real Property Law §235-f) allows a sole tenant who is party to a lease to have immediate family members, one roommate, and the dependent children of the roommate live in the premises.
 
Unless the lease grants greater rights, if two or more tenants are parties to a lease, immediate family members of the tenants are allowed, but no roommates are allowed, except if a tenant moves out. Then one roommate (and the roommate's dependent children) can take the place of each departing tenant. And at least one of the original tenants (or a tenant's spouse) has to occupy the premises as a primary residence.
 
Real Property Law §235-f(4):
 
Any lease or rental agreement for residential premises entered into by two or more tenants shall be construed to permit occupancy by tenants, immediate family of tenants, occupants and dependent children of occupants; provided that the total number of tenants and occupants, excluding occupants' dependent children, does not exceed the number of tenants specified in the current lease or rental agreement, and that at least one tenant or a tenants' spouse occupies the premises as his primary residence.
 
See §235-f in Real Property Law - Article 7.