Starting a Roommate Holdover Case

Who is considered a Roommate? A roommate pays rent to the tenant and not the landlord. A roommate holdover case may be started by the tenant to make a roommate leave a shared apartment or house. You cannot lock a roommate out of the home without a court order.

Here are a few examples of when you cannot start a roommate holdover case:

• If the other person living in the apartment is named on the lease and rents from the landlord or owner, then that person is a co-tenant and has the same rights to stay in the home. If you fear for your safety based on a person’s behavior - call the police.
• If the other person is someone the tenant allowed to live in the home without paying rent, then a licensee holdover should be started.

The case must be brought in the county where the property is located. For example, if the property is in Brooklyn, the case must be started in Kings County Housing Court. If the property is in Manhattan, the case must be started in New York County Housing Court. Use the Court Locator box to find information about each court.

You may also visit a Court Help Center to learn more.

 

Starting the Case

If the roommate does not move out after the deadline in the notice, the tenant may file a roommate holdover petition.

The person who starts the case is known as the petitioner. The person answers the petition is known as the respondent.

A friend or relative cannot represent or appear for the petitioner in court.

 

Forms needed to File

1. Original Notice of Termination
2. Affidavit of Service of the Notice of Termination
3. Notice of Petition
4. Petition
5. Postcard

Roommates without a lawyer can buy a Notice of Petition and Petition, Service Copies, Postcard, and Affidavit of Service at a legal stationery store.

 

DIY (Do-It-Yourself) Forms Program

Roommates without a lawyer can also use the NYS Courts Access to Justice Program's free and easy DIY Forms Program to create a Notice of Termination, Notice of Petition and Petition to print, serve and file to start a case if the:

• Roommate is supposed to pay rent to live with the tenant
• Roommate rents from the tenant and not the landlord
• Roommate shares rooms with the tenant, such as a kitchen, bathroom or living room.

The following information will be required to complete the program:

1. If the premises is a multiple dwelling, the name and address of the registered managing agent and the multiple dwelling registration number must be included. This information can be found on the NYC Department of Housing Preservation and Development website.
2. Start date of the rental agreement (with the roommate).

Roommates can also buy a Notice of Petition and Petition, Service Copies, Postcard, and Affidavit of Service at a legal stationery store.

 

Filing the Forms

1. After completing the Notice of Petition and Petition, make a copy
2. Then bring the forms to the Landlord-Tenant Clerk’s Office to the cashier’s window to buy an index number for $45.
   
   • Payment may be made by cash, certified check or money order payable to the "Clerk of the Civil Court." Go to Court Locator for contact information in your county. Refer to Court Fees to find out the cost of starting the case.
3. The clerk will stamp the index number on the original forms and keep the Petition. The Notice of Petition is returned with the index number stamped on the front.
4. The roommate must choose the court date to put on the Notice of Petition. The clerk will give the roommate the courtroom number and the assigned time to fill out on the papers.

The copies of the Petition and Notice of Petition must be served not less than five calendar days and not more than twelve calendar days from the court date.

 

Preparing to Serve the Forms

1. When the roommate pays for the Index Number, they must choose a court date. The clerk will stamp the Index Number on the papers. The clerk will give the roommate back the original Notice of Petition with the Index Number stamped on it and the court date.
2. Make a copy of the stamped copy of the Notice of Petition. Create a packet by attaching the copy of the Notice of Petition, the Petition, the Notice to Quit, and the Affidavit of Service for the 10-day Notice to Quit (the papers).
3. After making a copy of the papers. A copy of the packet must be delivered to each roommate.
4. The roommate must make sure the other person staying in the apartment receives a copy of the Notice of Petition and Petition in the manner required by law (this is called serving the papers).
   • The papers must be delivered at least ten (10) calendar days, and not over seventeen (17) calendar days before the day you selected for coming to court (For example, if the court date is August 21, 2019, the papers cannot be served earlier than August 5, 2019 or later than August 10, 2019)
   • Within three (3) days after the papers were served return to the clerk’s office to file the ORIGINAL Notice of Petition, with the ORIGINAL Affidavit of Service and the postcard with a postage stamp. The Affidavit of Service with the Notice of Petition and postcard must be filed within 10 days before the court date.

 

After Serving the Forms

All parties must appear in the courtroom on the date and time given. Use the Court Locator box to find contact information for the courthouse in your county.

Arrive early to go through security before entering the courthouse.

 

What to Bring to Court

Bring proof of the rent amount and rent payments, including:

• lease and lease renewals
• records of rent payments (money orders, cancelled checks or bank statements)
• agreements by the tenant to pay for improvements
• copies of rent increases from government agencies
• multiple dwelling registration (if the building is a multiple dwelling)
• Affidavit of Service

 

What happens in Court

All cases start in the Resolution Part. If the landlord and tenant do not reach an agreement and if the case is ready for a trial, it is assigned to a Trial Part to heard on a future date.

The judge in the Trial Part will listen to all sworn testimony, review evidence and decide the case. Visit How to Prepare for a Landlord-Tenant Trial.