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Subtenant refusing to vacate my apartment so I can move back

NYC Rent Regulation: Rent Control/Rent Stabilized, DHCR Practice/Procedures

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Subtenant refusing to vacate my apartment so I can move back

Postby thesubtenant » Mon Dec 28, 2020 1:08 pm

I have an agreement with a subtenant that ends Dec 31. The subtenant is refusing to vacate the property so that I can move back into my home. I have threatened to have him arrested for trespassing on Jan 1 if he does not comply. What other options do I have? I need my apartment back.
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Re: Subtenant refusing to vacate my apartment so I can move

Postby TenantNet » Mon Dec 28, 2020 2:11 pm

I don't think a trespassing charge would hold - or would the police do anything. They will say it's a civil matter ... and to a large extent, that's true.

You can't engage in self-help evictions; that might get you locked up. You have to get a court order if he won't go on his own.

You posted this in the rent regulated forum, so I'm assuming you are RS. You don't say if the arrangement was a "legal" sublet with approval of your LL, but to be honest, I don't know if that matters in a case like this.

When you have a sublet, in essence you are acting as a landlord. The sublet is your undertenant. The proper course is for you to commence a "licensee proceeding" in housing court seeking the sublet's eviction. That can take time, money and -- right now -- there is a general prohibition against evictions. The courts are mostly closed or backlogged. I understand the dilemma, but that's where things are today.

We recommend that you verify with a tenant attorney everything I'm telling you here.

Here's a thought. You didn't say how big the place is. While you might not be able to evict him right away. you can certainly move back in. It will be cramped and uncomfortable with two people in occupancy, but I don't think that's illegal (again, check with a lawyer) and no one is put out in the cold. If you change the locks, make sure you give the sublet a key in order to avoid a charge of an illegal eviction made against you.

There is plenty of discussion on this forum - and on the larger website - of roommates, sublets and so on.
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Re: Subtenant refusing to vacate my apartment so I can move

Postby thesubtenant » Mon Dec 28, 2020 2:17 pm

Thank you for the response. It is a four bedroom loft and all rooms are occupied. The person in question is occupying my room. He is claiming the DHCR says it's RS, though I am not aware of it, I have in the past overcharged rent to him and others and he is threatening to take me to court for overcharges and treble damages.

Would I be able to move back in and just occupy the living room? Is that a thing? Do I have any recourse if I am not allowed in the apartment as I do not have keys, he has mine.
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Re: Subtenant refusing to vacate my apartment so I can move

Postby TenantNet » Mon Dec 28, 2020 2:30 pm

Are you the primary tenant? Are all others roommates you have brought in and your name alone is on the lease with the landlord?

First, be careful you are not violating the NYS roommate law by having too many roommates. (Search for 'roommates' on the web site). Having too many roommates can get you into what's known as a rooming house, or even a hotel.

I know that's not the issue here, but if you hold the primary lease with the landlord, do some homework on what's legal and what is not.

Has he shown you a DHCR decision or opinion letter? You also should look at the history of the entire apartment, how it got to be this way. Is there a sublet agreement signed by both you and him?

Without knowing all the facts, you might have some liability from overcharges. Best to return any overcharges ASAP.

So moving back in - my suggestion above - well that depends on who is the primary tenant.

In the future, always retain a set of keys. An yet again, see if the primary tenant has a set you can copy.

Let me ask one more thing, if you are not the primary tenant, when you first moved in, who did you deal with, another tenant in the apartment, or the landlord him/herself? The answer to that might reveal if it's being operated as a rooming house. If so, the entire setup might be illegal.
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Re: Subtenant refusing to vacate my apartment so I can move

Postby thesubtenant » Mon Dec 28, 2020 2:38 pm

I am the primary tenant and had a lease with the landlord originally though it has since expired. The other roommates are under month to month sublease agreements with me. As for this particular person, we have a sublease agreement that is signed by both of us, that is what is expiring on Dec 31.

The loft is about 800 square feet but is only built out with four bedrooms. Would I be able to move his things out of my room and make him occupy the shared space of the apartment?

Again, thank you for the assistance.
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Re: Subtenant refusing to vacate my apartment so I can move

Postby TenantNet » Mon Dec 28, 2020 3:10 pm

You still haven't said if you are RS or not (but you did post this in the RS forum). If the entire unit is RS, then the LL must give you a renewal lease with the RGB increases, if any. If he doesn't, then the rent can't legally go up. Was your original lease a RS lease? Have you gotten a rent history from DHCR? That's advised.

If it's a SRO or rooming house, you get into a different ballgame. You said it was a loft, but that could be a generic description, or get you into left tenant regulation, very much like RS, but with differences depending on location and other things.

So the others are roommates (not sublets). The person in you bedroom, however, appears to be a sublet.

If you are not there and don't have the keys, and you have roommate (undertenants), then there's a lot that can go wrong.

If you are overcharging any of these people, make restitution ASAP. If anyone makes a complaint, you could be hit with treble damages, lose the unit, or both.

For this person, my advice holds, do not engage in self-help. Talk to a tenant attorney. There are strong penalties (and here you are acting as a LL) for illegal evictions, especially when it's cold outside. It could be the person has no where else to go.

You said there was a living room. I would sleep on the sofa until you get these other issues resolved. You can use pressure, but not self-help.

Look in the Reference section of this forum for the thread on illegal evictions. I know it's a hassle, but look at both sides.
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Re: Subtenant refusing to vacate my apartment so I can move

Postby thesubtenant » Mon Dec 28, 2020 3:19 pm

Thank you! I requested the documentation the tenant has from DHCR and it says RS next to my name and the lease amount so I can only assume he is right in saying that the apartment is Rent Stabilized.

It is a loft in style of dwelling but is a landlord owned rental building. I will look into the forum and do some digging. Im definitely concerned about moving back in as what I've read about illegal evictions so far says that I am not able to disturb the tenants in order to try and get them out. They have all clearly expressed that they do not want me to return to the apartment.
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Re: Subtenant refusing to vacate my apartment so I can move

Postby TenantNet » Mon Dec 28, 2020 3:49 pm

I can't say without seeing the document. I sounds like it might be a rent history, but don't make assumptions and that in itself does not create a RS status. There are other factors to look at. If you wish to scan the document as a PDF format and attach to a private message here, we'll look at it. Do not post it on the public part of the forum.

If your name is listed, that might mean it was still being registered on or after the time when you moved in. And since the LL has not offered renewals, while you might still have RS protections, any rent increases would be invalid. (if not RS, then as a M2M tenant, rent increases can take place with proper advance notice.)

You have to look at previous registrations, any attempt to deregulate, legal or not, any physical changes in the apt or building.

It would likely apply to the entire apartment, but just your room. And possibly this would not make this person the legal tenant. A sublet does not become a prime tenant. (you never said if the sublet had the LL's approval or not).

As for your status, even if the LL did not approve the sublet, the LL's remedy would be to send you a Notice to Cure. If you went away for a time for reasons such as work, then you have a right to return. If rent has been paid to the LL and there is no possessory judgment against you, then you still are the primary tenant.

That the other rommmates don't want you back, is irrelevant. It's not their decision. If you have the lease for the entire apartment, then you can move back in IMHO, just don't engage in self-help against the tenant in your room.

As the primary tenant and subject to any agreements you made, it's your call who is or is not your roommate.

This is starting to get complicated. At some point you might wish to consult with a tenant attorney. (be aware that some tenant attorneys will not help to get another tenant out).
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Re: Subtenant refusing to vacate my apartment so I can move

Postby brooklynbaby » Wed Feb 10, 2021 9:57 pm

I'm curious - how would it be possible to overcharge a roommate? If you're the leaseholder and you're opening a room to a roommate, isn't it up to your discretion to determine what to charge for that room?
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Re: Subtenant refusing to vacate my apartment so I can move

Postby BubbaJoe123 » Wed Feb 10, 2021 11:45 pm

brooklynbaby wrote:I'm curious - how would it be possible to overcharge a roommate? If you're the leaseholder and you're opening a room to a roommate, isn't it up to your discretion to determine what to charge for that room?


Nope. If it's an RS apartment, you're only allowed to charge a roommate their proportional share of the rent. So, if one roommate, their rent can't be more than 50% of the total apartment rent. In your case, your roommates can't be charged more than 25% of the total apartment rent each.

9 NYCRR § 2525.7
§ 2525.7 Occupancy by persons other than tenant of record or tenant's immediate family

(b) The rental amount that a tenant may charge a person in occupancy pursuant to section 235-f of the Real Property Law shall not exceed such occupant's proportionate share of the legal regulated rent charged to and paid by the tenant for the subject housing accommodation.

For the purposes of this subdivision, an occupant's proportionate share shall be determined by dividing the legal regulated rent by the total number of tenants named on the lease and the total number of occupants residing in the subject housing accommodation. However, the total number of tenants named on the lease shall not include a tenant's spouse, and the total number of occupants shall not include a tenant's family member or an occupant's dependent child. Regardless of the number of occupants, tenants named on the lease shall remain responsible for payment to the owner of the entire legal regulated rent. The charging of a rental amount to an occupant that exceeds that occupant's proportionate share shall be deemed to constitute a violation of this Code.

Statutory Authority:
Real Property Law, § 235-F, N.Y.C. Administrative Code, §§ 26-511(b), 26-518(a)
History:
Added § 2525.7 on 12/20/00.

http://www.tenant.net/Rent_Laws/rsc/rsc2525.html
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Re: Subtenant refusing to vacate my apartment so I can move

Postby TenantNet » Thu Feb 11, 2021 12:14 am

A little confused here. Brooklynbaby, I'm under the impression you live alone, that your one roommate left. viewtopic.php?f=3&t=14307&p=59938#p59938

Bubba is correct on proportionate share of the rents, but it usually doesn't apply to items that are not rent, i.e., utilities. OTOH, how does one divide up expenses like Coned?

This also assumes the roommate has one bedroom to him/herself and usage of other common areas of the apartment.
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Re: Subtenant refusing to vacate my apartment so I can move

Postby brooklynbaby » Thu Feb 11, 2021 1:39 am

Oh, I was just curious. Since I'm newly learning that my place might be RS I'm learning all sorts of new things...
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