If it gets down to it and you can’t stand the person you live with, or they aren’t paying rent, it might be time to try to evict them. While you may be tempted to change the locks and leave your roommate’s stuff on the curb out - don’t. After thirty days, your roommate in New York has the right to be formally evicted from the apartment. If you try to bar him from entering, he can go to the cops, and they will show up and tell you to let him back in, and really, this will make your already tense housing situation even worse.
You're probably wondering:
Do I have the legal power to evict my roommate?
Evicting a roommate in New York requires you to go through what the state calls a roommate holdover proceeding, and you can only do this if you're the master tenant (you're on the lease) and they're not.
Here are some specific scenarios that might be confusing you:
- What if you're both on the lease? You can’t start a case for eviction in housing court. Instead you'll need to put it in your landlord's hands.
- What if there's no lease? Your power to evict will depend on whether or not you have master tenant status which you get from being the one who sends the rent checks. If they send the checks and you don't, they they can evict you, and if you both separately pay rent to the landlord and you don't have a lease then you're both at-will tenants and at risk of eviction.
How do I know if I have good reason to evict?
Holdover cases are the only situations where you don't need just cause. If they're not on the lease and not paying rent to your landlord you can evict them.
How much notice do I have to give?
If you had a lease agreement with your roommate that ended and you have not taken any rent money from them then you don't need to serve them with any extra notice. You can file eviction papers in court and get a court date.
Otherwise, you do need to terminate your roommate's tenancy with a document called a termination notice before you can formally evict them. The notice of termination tells the tenant that:
- They have thirty days to vacate the unit before you will file papers with the court
- The day that the tenancy ends (this must fall on the least day of the monthly rental period and give you enough time to properly serve them with the notice).
You are not legally allowed to personally serve your roommate notice. You can hire a process server, a person specifically trained to serve legal papers, or you can have anyone who is not involved in the case and is over the age of eighteen serve the notice. The laws governing how they must be done are extremely specific, and if they are not followed exactly, your case can be dismissed when it goes to court.
Remember: if you accept a rent payment after the termination date then you'll have to go through the whole process again from the beginning.
How do I file eviction papers?
After the notice period has come to a close, you must file papers with the court. The documents you need to complete are:
- A notice of petition: this tells your roommate that a housing court case has been started to decide the petition, and where and when to answer and come to court.
- A petition: is delivered with the notice, shows all of the information that you will have to prove in court.
The petition and notice of petition both need to be formallly served to your roommate. You will need to return the notice of petition and the affidavit of service to the clerk's office within three days of the papers being served.
What happens in court?
In court, you will appear before a judge. Juries are not present for landlord-tenant hearings. If the judge rules in your favor, your roommate may be ordered to pay you any unpaid rent or attorney's and filing fees. You must give the court clerk a warrant of eviction to be signed. After, you must hire and pay a marshal, sheriff, or constable to deliver a notice of eviction to the tenant. The notice of eviction tells the tenant that they have seventy-two hours to leave before they will be forcibly removed from the unit.
You can always break your lease or find a subtenant if you would rather move than deal with the eviction process. If you want to move forward with evicting your roommate in New York, then read through the requirements for a standard eviction and learn about holdover proceedings.
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