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Welcome back to Ask a Lawyer, wherein I, a lawyer, respond to your questions. Got a vexing legal issue? Send it over, or drop it in the comments below.

I’ve been living in my Brooklyn apartment for about 3 years with one roommate (he’s also on the lease). In December, we decided to take on a third roommate on a month-to-month basis (no agreement was signed), and at first, everything seemed fine—he’s really awkward and skulks around the apartment at odd hours, but I figured he was just getting settled in. However, the longer we live with him, the more convinced we become that he’s a deeply creepy person (he’s an MRA, which I know has no legal bearing, but...come on), and we don’t want him in our apartment anymore. Long story short, my roommate and I have decided to kick out the month-to-month renter by telling him a friend of ours is moving here and we’ve offered him the room. (It seemed more polite than telling him he’s a horrible person and we despise living with him.)

When I raised the subject yesterday, he started arguing the fairness of the decision and made a bunch of sounds about needing to “read up on the law,” which makes me think he’s not going to go gently into that good night. We’ve given him more than 30 days notice, and I’ve offered to act as a character reference on his behalf to make the moving process as smooth as possible. So my question is twofold: Does he have any legal claim to his room if he’s not on the lease and the two people who are want him out? Likewise, is there any legal recourse I have to get him out of the apartment if he refuses to leave?

I like your world view. A skulking awkward creeper seems fine to take in as a roommate with whom to share your personal space—it makes me feel better about humanity. I think I’d be comfortable hanging out with you, knowing that all of my quirks on display will be just fine, but I am also curious about what he did to fall from your graces. Was it the human body parts in the fridge? Talking too much about his Crossfit wall ball PR? Hanging toilet paper the wrong way with the paper rolling over the back of the roll? He went from awkward to deeply creepy to horrible, yet you’re not giving us any inciting event. Disappointing.

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I did have to google “MRA,” which seems to mean either “Magnetic Resonance Angiogram” or “Men’s Rights Activist.” I haven’t heard of either one, but chalk that up to my good health for the former and male privilege for the latter.

The answer to this question is super-local: It requires us to apply New York law on the state level and as it applies to NYC, specifically. We’re going to assume that you and your roommate are both on the lease (the original roommate, not the one you had incredibly poor judgement to bring into your inner sanctum even though all the signs were there). We’re also going to assume, just for the sake of visuals, that you live in a garden apartment tucked under a majestic brownstone that’s veiled in ivy and majestic history. The third bedroom is in the windowless basement, which—in my mind—is possibly what makes your new roommate so irascible.

Let’s start at the beginning. Did you have the right to bring on a roommate in the first place? In your situation, possibly, even if your lease says that you can’t. In New York state, under the “Roommate Law,” an apartment lease entered into by two tenants is deemed to permit an “occupant” so long as the total number of tenants and occupants doesn’t exceed the number of people on the lease, and subject to zoning and safe occupancy laws. Here, “occupant” is a magic legal word that means someone who’s living in the apartment who isn’t a tenant on the lease or a tenant’s immediate family. The roommate limit excludes any occupants’ children, but given your roommate’s apparent social skills, sounds like past procreation was unlikely. Some courts have interpreted the statute as too strict and that an occupant can be present even if all named tenants are also present, but some have enforced it, so legally, your mileage may vary. Technically, you were supposed to notify your landlord of the new roomie within 30 days, but we’ve got bigger things to deal with here.

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Since you are month-to-month with Mr. Darkside and have no written agreement with him, you were on the right track to give him written notice—the law for New York City is 30 days minimum in this situation. However, did you deliver that notice to him in writing? Did you keep a copy of the notice and record the date and time you personally handed it to him? You don’t just tape it to the door to his subterranean lair. These are important things to have done if you need to legally escalate. Also important to note not to accept any cash or other consideration from him for anything beyond the termination date.

If he fails to move out after the termination date, he’s both a pain in the ass and a holdover roommate. And you’re lucky that the New York City Housing Court makes available a Roommate Holdover Program that not only lays out exactly what you need to do step by step, but also even gives you a form generator that can create the termination notice I mentioned above and the legal paperwork you’ll need to serve and file if he just won’t go.

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It’s important to note that you don’t have to give him a reason. And I’m pretty sure I’d see through the we-suddently-have-a-friend-moving-in-who’s-not-as-creepy-as-you thing. I’d at least be direct with the guy - maybe he’s not aware of the ick vibes he’s throwing off. It’ll be a bitter red pill to swallow, but I’m sure he’ll get the point if he holds over and you have him served with eviction papers.

Note: States and cities outside of NYC are all over the place on this issue, so if you’re reading this and have an unwelcome roommate in your midst, check your local resources and experts.


Ask a Lawyer is a practicing lawyer with over 15 years of broad legal experience. He is part of the team at Unwonk Podcast and can be found on Twitter. I really like people I quote here, but that doesn’t mean I endorse them, because ... lawyer. Keep in mind that this is general information, and not formal legal advice or legal representation; if you need any of that, you should get it from a lawyer in real life, not an internet column. A legal problem is serious and fact-specific, and you should treat it accordingly. But you have common sense and already knew that.

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