Advocate Page : Evicting A Roommate (Advocates)

This article is designed to inform advocates who are helping others deal with evicting a roommate or spouse. It uses legal terms and cites to New York law. An article with plain language is available on this site in the Housing section of LawNY's website. (link)


LEASES: A lease is a contract between a landlord and a tenant which contains the terms and conditions of the rental. It cannot be changed while it is in effect unless both parties agree. A lease may be oral or written.  If both cohabitants are parties to the lease, one cannot evict the other. However, if the other has committed a criminal act or a family offense (including harassment or disorderly conduct), the other tenant may be able to obtain an order of protection (issued within 24 hours) from Family Court or a criminal court, ordering the other abuser to stay away from the other tenant’s home. A sympathetic landlord could evict the other tenant if there were grounds, or could terminate a month-to-month tenancy of only one of the tenants.


EVICTION: To evict someone from their established home, the person who is entitled to possession of the premises must sue in court and win the case. Only a sheriff, Marshall, or constable can carry out a court ordered warrant to evict someone from his or her home. (RPAPL §749).

Someone who is put out of his/her home in a forcible or unlawful manner is entitled to recover triple damages in a legal action against the wrongdoer. Using illegal methods to force someone to move is a criminal violation. (RPL §235).  Some law enforcement agencies are slow to respond to illegal evictions, and not all officers are aware that illegal evictions are criminal violations.

Tenants are not the only persons who can (or need to be) be evicted. RPAPL §713 lists the grounds for eviction where no landlord-tenant relationship exists. This includes people remaining after a foreclosure sale, former owners, squatters who intrude or who remain after permission to remain has been revoked, and a licensee whose license or permission has expired or been revoked. Before evicting a person on these grounds, the statute requires that the person to be removed must first be given a “ten day notice to quit.”

The person being evicted must be properly served with notice of the eviction case within 5 to 12 days of the court date. (RPAPL §733). After an eviction warrant is served, the person has an additional 72 hours before he or she can be forcibly removed by the police (RPAPL §749). Therefore, an eviction could take three weeks or more.

There may also be local laws on this issue. In New York City, for example, if a guest has been living in the apartment for over 30 days, then the Unlawful Eviction Law prevents tenant or landlord from any self-help remedies to evict the guest, even if he’s not technically a tenant. See NYC Admin. Code 26-521. The right not to be removed from a hotel or boarding house without an eviction proceeding accrues after 30 consecutive days in possession (RPAPL §711). In general, after 30 days, one stops being merely a visitor. A trickier question may be in determining when the person may have relinquished his or her possession, making eviction no longer necessary.


WHAT IS CRIMINAL TRESPASS? Penal Law §140 defines criminal trespass as an act which permits immediate removal and possibly arrest of the intruder. A person is guilty of trespass when he knowingly enters or remains, unlawfully, upon premises. If a person has been licensed or privileged to enter or remain upon the premises, then it is not “unlawful.” Once premises have been lawfully entered, it is not unlawful to remain thereon after being requested to leave. People v. Collins, 16NY2d 554 (1964).

A landlord can be charged with trespass on his own property, if that property has been rented to someone else.


APARTMENT SHARING: It is unlawful for a landlord (by a lease clause) to restrict occupancy of any apartment to the named tenant in the lease or to that tenant and immediate family, by one additional occupant and the occupant’s dependent children. This does not mean that these occupants are tenants. Their rights are derived only from the permission granted by the tenant who is sharing the apartment with them. However, if that permission is withdrawn, it may be necessary to evict the additional occupant. A tenant who sub-lets part of the rental has given tenant rights to the person paying rents, and must then give the sub-lessor a full rental period’s notice to terminate the renter’s right to possession.


MARRIED COUPLES: It may be even more difficult to remove a spouse from your home without getting an order of protection, even if your spouse does not own the home, and even if it is your “separate” pre-marital property. Courts have held that a spouse is not a mere licensee and therefore cannot be evicted through a summary proceeding. (Rosenstiel, 20 A.D. 2d 71 ((1st Dept., 1963).

In Minors v. Tyler, 521 NYS2d 380, (Civ. Ct. Bx Cty 1987), the court transferred an eviction case out of housing court to Supreme Court as “social realities require the courts to recognize that unmarried occupants who reside together as husband and wife acquire some rights with respect to continued occupancy of the apartment they shared, not unlike those acquired by a spouse,” and holding that the female partner was therefore not a licensee in a holdover brought by the male partner/title-holder of a single family house. Other jurisdictions may apply different principles in such a situation. In Blake v. Stratford 188 Misc.2d 347 (2001) the court evicted the non-married partner of the abuser after 3 years cohabitation, but the court did note that the mutual children of the property owner and the respondent were not licensees, and could not be removed via the eviction proceeding. More recently, in D v. R. (2003 N.Y. Slip Op. 23711, N.Y.C. Civil Ct., 2003), a court held that a non-married couple of ten years, with mutual children and contributions made to the home’s value, had acquired rights similar to a married couple as it affected occupancy rights of their shared residence. The prohibition against eviction is usually based upon the property owner’s legal obligation to provide support and housing to the person he or she wishes to evict. In Nagle v. Nagle 134 Misc. 2d 753 (1987), a step-father was not allowed to evict his underage stepchildren from his home. In Halaby v. Halaby 44 A.D. 495 (4th Dept., 1974), a spouse was allowed to revoke his permission to remain in real estate he owned, and to evict his spouse, as a court order for support had already established his support obligation.

Legal theories of “constructive trust” and “unjust enrichment” are sometimes invoked to assert the rights of an unmarried untitled partner who has invested his or her own funds or labor into another person’s property, with an expectation of acquiring a property interest or right to reimbursement. When these claims are involved, a court is more likely to dismiss a proceeding brought as a summary eviction case, and refer the case to a higher level court having jurisdiction over all issues. Summary proceedings cannot be used to settle personal disputes which involve equitable issues. Sirota v. Sirota, 164 Misc. 2d 966 (1995); Billips v. Billips, 198 Misc. 2d 144 (2001).

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This article supplies general information designed to educate advocates about this subject. Laws affecting this subject may have changed since this flier was written. For specific legal advice about a problem you are having, get the advice of a lawyer.

Receiving this information does not make you a client of our office.

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