Daily Development for Wednesday, May 6, 2010
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Husch Blackwell Sanders
Kansas City, Missouri

LANDLORD/TENANT; ROOMMATES; TERMINATION: Where a “roommate” arrangement is deemed a sublease, the primary tenant/sublessor is not legally entitled to eject sublessee from an apartment without a court order and at least 30 days notice. 

Tiller v. Shuboney, 894 N.Y.S.2d 343 (N.Y. City Ct. 2009). 

Plaintiff and Defendant, both college students, agreed to rent an apartment together.  Only Defendant signed the approximately year long lease for the apartment, but the landlord was notified that Plaintiff was living in the apartment and Plaintiff verbally agreed to pay half the costs associated with renting the apartment.  There was no written or verbal agreement regarding the obligations of either party in the event that one of the parties wanted to move out before the lease expired.

After months of living together, tensions increased amongst the two parties and relations deteriorated.  Plaintiff left the apartment for winter break and upon her return to the apartment, she learned that Defendant had changed the locks.  Defendant's mother answered the door and told Plaintiff that Plaintiff would have to move out of the apartment. 

Plaintiff and Defendant later exchanged letters regarding the removal of Plaintiff's belongings from the apartment and in one of such letters Defendant threatened that if Plaintiff did not remove Plaintiff's belongings by a certain date, such belongings would be moved to the basement.  When Plaintiff arrived at the apartment to pick up her belongings, she found all her belongings in the basement and she noticed that some items were damaged. 

After being ousted from the apartment, Plaintiff moved back home with her mother and was unable to complete the rest of the academic semester because of the distance between her mother's home and the college. 

Plaintiff sued Defendant for damages.  According to the court, a contractual relationship existed between Plaintiff and Defendant and Plaintiff was the sublessee of Defendant.  The court determined that:  (i) as Defendant's sublessee, Plaintiff was entitled to the same legal protections from Defendant that Defendant was entitled to from her landlord and (ii) Defendant was also required to provide the same legal protections to Plaintiff that Defendant's landlord was required to provide to Defendant, which protections included the right to have a minimum of 30 days notice prior to an eviction and the right to not be ejected from an apartment without a court order.  Since Defendant accepted Plaintiff's rent during the month in which she locked Plaintiff out of the apartment, did not give Plaintiff sufficient notice and did not obtain a court order of eviction the Court determined that Defendant was not legally entitled to oust Plaintiff from the apartment and Plaintiff was entitled t
o damages.

Comment 1: The court commented that roommate arrangements can be characterized in a number of different ways, but its reasoning here did not leave much room for a characterization that would not at least require that there be notice and a court order before the roommate’s occupancy could be terminated. 

Comment 2: The defendant in fact got off lightly, as the court recognized an unstated provision in the oral lease that the roommate’s occupancy rights were subject to termination - presumably by either party.  Otherwise the Defendant would be liable for damages for Plaintiff’s loss of the balance of the lease term. 

Comment 3:   Another was this could be characterized and technically (to the editor) should have been characterized is a cotenancy.  Both sides agreed to be liable for the rent for the term of the lease and, although only one party’s name was on the lease, that party could be viewed as the agent for the cotenancy.  Terminating possession rights under such an arrangement would be more complicated, involving a suit for partition.  Since the lease was only for a year and all arrangements were verbal, the court wisely set aside this technically preferred construction.  If both parties were, say, operating a business, wouldn’t the court be more likely to use the same construction if all other facts were the same? 

Comment 4: If the roommate was deemed a licensee, she might have been easier to evict, depending upon state law, as in some states licensees have no possession rights to assert.  But where roommate had affirmatively agreed to pay half the right, construction of her rights as only a licensee would seem to be unfair.  Such characterization, and truncation of rights, might be appropriate where a party to a  romantic relationship has “moved in” with the leasing tenant and even shares some expenses, but the apparent deal is that occupancy and romance are coterminous.

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