Romantic break-ups are hard enough. At a minimum they are mentally draining. The most mature and amicable break-ups are the kind you walk away from, each party going his/her own way. However, some breakups are not that simple.
Imagine: after breaking up your ex adds insult to the breakup injury. Even though you and your ex have split ways romantically, he/she is not willing to leave your home.
You are the prime tenant because you are renting directly from a landlord. Your ex was just living with you. So, his/her agreement is with you, not your landlord.
What, now, do you do?
DO I THROW HIS/HER PROPERTY OUT AND CHANGE THE LOCKS?
Absolutely not! Yes, I know you’ve broken up. I know that a more mature person would just move on—after all, you have– that’s why you broke up. Yes, you’re the only person on the lease with the landlord; it would seem like the easiest route would be to throw him/her out. However, by allowing someone to live with you, you’ve given your ex rights as a tenant in New York.
Violating those rights by not allowing your ex, who is now an unwanted roommate, back into the apartment or residential dwelling is a criminal offense, with some very serious ramifications. Likewise, do not move or otherwise disturb your ex’s property. You are opening yourself up to criminal charges and civil penalties. Now is the time to step back and assess your options.
DO I MOVE OUT AND HOPE HE/SHE DOES THE SAME?
Generally, a landlord will not accept a tenant surrender of an apartment if the tenant has left someone behind. New York State eviction laws make a left behind occupant, the primary responsibility of the tenant to start the proper eviction proceedings in housing court. Depending on the situation, your landlord could keep you on the hook, too. You could be considered a hold- over tenant, because you moved out but did not deliver vacant possession of the apartment to the landlord.
HAS HE/SHE BEEN LIVING WITH YOU FOR MORE THAN 30 DAYS, OR PAYING YOU RENT? DOES HE/SHE PROVIDE SOME KIND OF SERVICE IN EXCHANGE FOR LIVING WITH YOU?
If not, then what you have is a guest, and generally you can ask law enforcement to remove a guest at any time, depending on the facts.
If yes, then you’ve given your ex the same rights as a month to month tenant. That means you must give 30 days’ notice to terminate the “lease.” That is, if he/she has lived there for less than a year. If it’s been more than a year, but less than two years the notice must give he/she 60 days to vacate. If more than 3 years, it’s a 90-day notice that must be provided. The notice to vacate must be properly served. The formalities about the contents of the notice, and the service of the notice must be followed. Otherwise, unfortunately, you may have to serve the notice and restart the process all over again
SHOULD I ACCEPT RENT PAYMENTS, SHE/HE IS THERE ANYWAY?
Stop taking rent from your ex. By accepting rent you’re extending the tenancy, and starting over the time by which he/she must leave or be evicted. Likewise, if the arrangement was not for money, but for services, or some other exchange, terminate that agreement immediately. Don’t worry, you’ll be able to ask for the rent he/she owes you for holding over. You’ll just be asking the eviction court to order it so.
I hope the notice will be enough to let your ex know that you are serious about getting him/her out of your apartment/home.
However, sometimes, your ex still won’t move out by the date you’ve included on your demand. That will require involving the court, which is a topic I will cover in a future post.
SHOULD I HAVE AN ATTORNEY HANDLE THIS FOR ME?
A lot of these matters can, in theory, be done without an attorney. However, there’s a value proposition to having a law office handle the formalities involved in serving the notice. Details matter. So does the peace of mind of having a legal professional handle these matters for you.
Often, getting a strongly worded demand letter from a law office is enough to let your ex know you mean business.
This article is not meant to give legal advice, nor does it encompass every aspect of the roommate, holdover eviction process. It is a snapshot of one potential situation. Please read and become familiar with the disclaimer and terms of use.
If you are located anywhere in Brooklyn, Bronx, Manhattan, Queens, Staten Island; or in Nassau or Suffolk Counties, and have more questions, please do not hesitate to give me a call.