February 2, 2025

For the next few months in 2025, I am going to spend some time in these pages cross-promoting my very popular podcast, the Tenant Law Podcast – listen on Apple, Spotify, YouTube, or wherever there are awesome podcasts. This blog post expands on Tenant Law Podcast Episode 18.

First let’s set the stage with some context.

A roommate lives with you in the apartment. A roommate is a “person, other than a tenant or a member of a tenant’s immediate family, occupying [an apartment] with the consent of the tenant….” 520 East 81st Street Associates v. Roughton-Hester, 157 AD2d 199 [1st Dept 1990].

The difference between a roommate (permissible under Real Property Law § 235-f without notice to or permission from a landlord) and a subtenant (whose occupancy is subject to the statutory provisions of Real Property Law § 226-b) generally turns on whether tenant contemporaneously occupies the apartment with a tenant. Fairmont Manor v. Verdicchio, NYLJ, 9/18/1995 p. 21, col. 3 [App Term, 1st Dept]; Kimmel v. Estate of Ling Kai K’Ung, NYLJ, 8/6/1993, p. 21, col. 5 [App Term, 1st Dept].

A roommate is not renting a room from the tenant (that is something totally different, usually illegal, and a topic for another day), but rather a roommate is sharing the whole apartment with the tenant, even though tenant and roommate might sleep in different bedrooms.

A subtenant is totally different. A sublease is a transfer by a tenant of the tenant’s legal interest in the apartment. BLF Realty Holding Corp. v. Kasher, 299 AD2d 87, 94, [1st Dept 2002], appeal dismissed, 100 NY2d 535 [2003].

We have talked about this before on this pod and it is such an important concept that tenants must comprehend, in order to understand where most of their rights come from. A tenancy is not a regular contract. A tenancy is a contract and a conveyance. A conveyance means an exclusive grant of an interest in real property. The critical question in determining the existence of a lease establishing a landlord-tenant relationship is whether exclusive control of the premises has passed to the tenant. Feder v Caliguira, 8 NY2d 400, 404 [1960]; Matter of Davis v. Dinkins, 206 AD2d 365, 366 [2d Dept 1994]; American Jewish Theatre v. Roundabout, 203 AD2d 155, 156 [1st Dept 1994].

When you enter into a lease, your landlord is granting you an interest in the building. It’s limited – it has a built-in ending date, it is only for a certain apartment, and it is conditional – if you do not pay or if you break other rules, you can be evicted. But nevertheless, it is still a grant of an exclusive interest in real property, that means the apartment is only yours and you can keep the world, and you can even keep the landlord, out. The landlord has certain rights to come in to fix things if the landlord gives the tenant the proper notice required by law. But, in general, the landlord cannot re-enter that apartment unless you give the apartment back to the landlord or a court grants the landlord a judgment of possession and issues a warrant of eviction. If this control has passed, even though the use is restricted by limitations or reservations, a landlord-tenant relationship is established. Layton v A. I. Namm & Sons, Inc., 275 AD 246, 249 [1st Dept, 1949], affd 302 NY 720 [1951].

So, when a tenant gives someone a sublease, tenant is doing the same thing with respect to the subtenant that landlord is doing with respect to tenant – granting the subtenant an exclusive interest in the apartment! The tenant cannot go back into the apartment until the subtenant gives the tenant back the apartment or a court gives the tenant a judgment of possession and issues a warrant of eviction. Thus, a subtenancy is a big deal.

Note, you cannot lock a roommate out either, no way! But at least with the roommate situation you can still be present in the apartment. In the sublet situation, you cannot go back in.

So, the presence of an unrelated individual in an apartment, coupled with the absence of the tenant-of-record from that apartment, can lead to the conclusion that a sublet has occurred. 27 W. 84th St. Tenants Ass’n v. Knight, 11 Misc. 3d 129(A) [App Term, 1st Dept 2006].

This distinction between a roommate and a subtenant has so many implications – not just for Rent Stabilized tenants, but for free-market tenants as well. How you legally form a roommate relationship is very different from how you legally create a subtenancy. How you terminate each is different. How many people can be roommates differs from how many can be subtenants. The length of time you can have a roommate differs from the length of time you can have a subtenant if you are Rent Stabilized. We do not have time to cover all these differences in a 10-minute podcast or its companion blogpost. For now, we just need to be able to distinguish between a roommate and a subtenant for purposes of understanding today’s case.

Now let’s get into today’s case, Royal Associates LLC v. Gomez, 80 Misc.3d 422 [New York City Civil Court, Queens County, Housing Part, 2023].

In today’s case, the tenants are Rent Stabilized (I am making up fake names for them, even though the tenants names are public record, because I want to attract less attention to them online, so I am using a random name generator, set to offer mythical names. So for purposes of this blog post, the tenants’ names are the Gentlespice Family. Landlord issued a ten-day termination notice, purporting to terminate the tenancy of the Gentlespice Family for illegal sublet. Why? Because landlord noticed that the Gentlespice Family were no longer living in the apartment. Instead, the occupants of the subject premises were the Beetlesong Family.

The occupants, the Beetlesong Family, showed up in court to defend against the eviction case. The Beetlesong Family used the defense that they were not subtenants of tenants, the Gentlespice Family, but rather they were relatives of tenants, the Gentlespice family. The occupants said that, when they first moved into the apartment, they lived for years together with the tenants. Eventually, the tenants moved out, leaving occupants alone in the apartment. The occupants never paid rent to the tenants. In other words, the occupants testified that this was one big family using the apartment in a flexible manner.

Neither I, nor the judge in Royal Associates, are saying that what the tenants-of-record are doing is not problematic. This may be nonprimary residence. But, whatever else is or is not wrong with the situation, it is NOT illegal sublet. Why? Because, remember, a crucial element of a subtenancy is handing over exclusive possession to the occupants. That never happened here. So, the landlord lost the case.

This leads to some very interesting tenant takeaways.

This landlord probably needed to bring a nonprimary residence case. Rent Stabilized tenants are supposed to live in their apartments. So why was landlord not more careful to bring the correct case? Maybe the landlord or its attorney made a mistake. But some landlords bring the wrong case on purpose. Why? It is another long story for another day, but an illegal sublet case is often easier to bring and successfully prosecute than a nonprimary residence case. So many landlords try to claim that situations like the one in Royal Associates (wherever they see the tenant of record no longer in the apartment) are illegal sublets, when they are actually nonprimary residence situations.

Also, what these tenants and occupants needed to do was to have documented the occupants’ succession right to the Rent Stabilized tenancy. Episode 6 of the Tenant Law Podcast covers when and how family members and people like family members should document their rights to succession to a Rent Stabilized apartment.

Finally, if you are sharing or using someone else’s apartment, you are not the tenant of record, consider whether you are a roommate or a subtenant or maybe something else. This will affect what your rights are if there should be an eviction case.

Respectfully submitted,

Michelle Itkowitz