We don’t often write about apartment rental agents or brokers. They are not necessarily bad guys. Some perform very well for their clients and help make certain transactions possible. On the other hand, let’s not hide the
fact that RDNY.com can, in most situations, replace a real estate agent in helping you find an apartment. Also, let’s not forget the biggest benefit of all; RDNY can save you a ton of money in renting a New York apartment. In most cases, the savings is almost two month’s of rent!
But back to brokers and roommate situations. I saw a post on Tenant.net yesterday. It’s titled: “Broker suing over non payment of broker fees”. The broker is suing, not the tenant of the apartment, but the roommate(!) whom the broker helped to find. And get this, he is suing him for a broker’s fee for finding the apartment! If anything, he should be suing only for having helped find a roommate – but the broker fails to meet the test there too.
But wait, it gets worse. The broker had an agreement with the existing tenant of the apartment,
not with the new roommate. The existing tenant of the apartment paid the broker the roommate finding-fee. So what’s the broker’s problem?
The new roommate never signed anything nor did the broker ever disclose that there was a fee for his roommate-finding service. So on what grounds is he suing the new roommate? A apartment brokerage fee? A roommate finding fee? Each seems like an impossible hill for this broker to climb. I don’t think this broker has a leg to stand on – and you’ll see my reasoning in the Tenant.net post here.
So what are the New York State/New York City rules concerning the legality of having a roommate? The rules in New York State and New York City are spelled out in the “Roommate Law”. Here’s a section from my reply post on Tenant.net:
In rent stabilized apartments, tenants have a right to have a roommate or significant other move into their apartment, although they also have the obligation to disclose this information to the landlord. The landlord may not prohibit the other person from living in the apartment (except in very narrow and specific cases), but the landlord is nonetheless entitled to ask the roommate to fill out some paperwork letting the landlord know who the proposed roommate is and how they can be contacted.
In non-rent stabilized apartments, the landlord has the right to prohibit any person whose name is not on the lease from living in the apartment. In almost all non-rent stabilized leases (known as a ‘prime lease’), the lease mandates that landlord’s approval must be obtained in order for a roommate to move in with a tenant. The apartment owner has the right to reject a roommate.
John from Tenant.net then went on to comment on my post, pointing out that Real Property Law section 235-f is not limited to only rent stabilized apartments, and that even in the case of prime leases, tenants have the right to have an unrelated person who is not on the lease live with them. Hence the name “live-in lover law”. Further research on my part shows that John is correct on this point
According to New York State’s Dept of Housing and Community Renewal (DHCR) online FAQs, I found the following:
Can a tenant in a rent regulated apartment take in a roommate and is there a limit on the rent that the roommate can be charged?
When only one tenant is named on a lease, the tenant has the right to take in a roommate and the roommate’s dependent children. When two or more tenants are named on the lease, the number of tenants and roommates cannot exceed the number of tenants named in the lease. In all situations, occupancy may be restricted in order to comply with municipal regulations concerning overcrowding.
In a rent stabilized apartment, the rent collected from the roommate cannot exceed their proportionate share of the apartment. For example, one tenant named on a lease can take in one roommate and the roommate can be charged no more than half of the legal rent. The roommate can be advised to file a complaint of rent overcharge with DHCR if they were charged in excess of that proportionate share.
I also found this conversation, hosted by Habitat Magazine (a publication for coop and condo owners and their housing managers and decision makers) between Habitat publisher Carol J. Ott discussed that question with two attorneys: Bruce Cholst, a partner at Rosen Livingston & Cholst, and David Byrne, a partner at Herrick Feinstein.
Cholst: It’s important to note that for the Roommate Law to apply as a shield, the tenant of record must be the primary resident. And in terms of this case, I think an argument can be made that it (the Roommate Law) would not apply to roommates of an approved subtenant.
Cholst: One thing the statute requires is that the tenant who’s bringing in the roommate must notify the landlord, if the landlord requests it, about who the roommate is.
Can the board ask to vet the roommate before he or she moves in?
Cholst: I don’t believe they have that power. They can certainly do it if the proposed subtenant, out of a desire to get the lease, voluntarily approves and submits the roommate to review of the board. But I don’t think they have the power to compel it. And legally, I think, they would be required to evaluate the subtenancy on its own merits.
One of the major tasks of a board is to approve who buys apartments and who can live in them. The Roommate Law seems to really undercut that responsibility.
Cholst: You’re absolutely right.
The bottom line: New York’s Roommate Law seems to make having a roommate a matter of right for NYC tenants. If requested, the tenant must disclose who the roommate is, but only if that information is requested by the owner.
As for the broker in question at the start of this article; I don’t see how this broker has any case against the roommate. Unfortunately, this roommate will still have to spend the time and necessary resources to protect herself/himself from the lawsuit.