Evicting my roommate

I have a month to month lease with my roommate.
He refuses to pay his rent on the 1st of the month and portions of the rent due
on the 1st of the month carry over into the next month.

He is not on the lease. I am renting the spare bedroom to him.

Is he considered a holdover tenant?

How do I evict him. This is a nightmare.

Asked on January 29, 2019 under Real Estate Law, New York

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

Under NY law, when the prime tenant "sublets" a separate landlord-tenant relationship is created between you (e.g. the sublessor) the person who you rent to (e.g. the subtenant). The respective rights of the sublessor and the subtenant are governed by the terms of the sublease, written or oral. If the sublease has not expired then your right to bring a holdover proceeding (e.g. eviction) against the subtenant would depend upon whether the subtenant has violated one or more provisions in the sublease (or the provisions in your lease with your landlord) such that you would be permitted to legally terminate the sublease. If you had just a mont-to-month ublease, then upon 30 days notice, you would have the right to commence a holdover proceeding and seek a judgment of possession a a warrant of eviction. If you bring a holdover proceeding after the sublease expires, you would not need to prove that the subtenant violated the terms of either the sublease or overlease. Your proceeding would be based upon the expiration of the sublease the fact that the subtenant continue to "hold over" without permission. These grounds are, in most cases, easier to prove than grounds based upon a lease violation by the subtenant. In the meantime do not undertake any "self-help" remedies such as changing the locks, removing your roommate's belongings, etc. You could be sued if you do. What you should do now is to contact an attorney who specializes landlord-tenant cases; they can best advise adise you further.

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

Under NY law, when the prime tenant "sublets" a separate landlord-tenant relationship is created between you (e.g. the sublessor) the person who you rent to (e.g. the subtenant). The respective rights of the sublessor and the subtenant are governed by the terms of the sublease, written or oral. If the sublease has not expired then your right to bring a holdover proceeding (e.g. eviction) against the subtenant would depend upon whether the subtenant has violated one or more provisions in the sublease (or the provisions in your lease with your landlord) such that you would be permitted to legally terminate the sublease. If you had just a mont-to-month ublease, then upon 30 days notice, you would have the right to commence a holdover proceeding and seek a judgment of possession a a warrant of eviction. If you bring a holdover proceeding after the sublease expires, you would not need to prove that the subtenant violated the terms of either the sublease or overlease. Your proceeding would be based upon the expiration of the sublease the fact that the subtenant continue to "hold over" without permission. These grounds are, in most cases, easier to prove than grounds based upon a lease violation by the subtenant. In the meantime do not undertake any "self-help" remedies such as changing the locks, removing your roommate's belongings, etc. You could be sued if you do. What you should do now is to contact an attorney who specializes landlord-tenant cases; they can best advise adise you further.


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