A long frustrating
problem that co-tenants have faced is what to do if their co-tenant/roommate
refuses to pay their portion of the rent for an apartment. If two co-tenants share an apartment, and one
bails on the rent, the other remains liable for the entire rent, and is faced
with the unenviable decision of whether to refuse to pay the non-paying
co-tenant’s rent and face eviction for nonpayment of rent, or to simply pay up
and hope that the co-tenant reimburses him or her. The choice is necessary because the law is
clear that co-tenants are jointly and severally liable for the entire
rent. Thus, whether one or both of the
tenants pay the rent is not the landlord’s problem or responsibility. According to a March 2014 decision by the
Supreme Court, New York County, there is a solution to this problem.
In Stellweg v. Welch
& N.H. Lyons, Inc., 2013 WL 6702832, 2012 N.Y. Slip. Op. 22157(U)
(Trial Order) (Sup. Ct., NY Co.) the co-tenant/Plaintiff Stellweg, who by oral
agreement with her co-tenant/Defendant Welch paid one-half of the rent on a
shared apartment, was faced with this very issue. Defendant Welch began to withhold such rent
after being prohibited from entering the apartment by virtue of an order of
protection from the New York City Criminal Court. Stellweg commenced an action in the Supreme
Court, New York County, seeking to partition her co-tenancy interest from that
of Defendant Welch, and additionally named the owner as a defendant. The owner commenced a separate proceeding in
housing court seeking to evict Stellweg and Welch for nonpayment of rent. That summary nonpayment eviction proceeding
was consolidated with the Supreme Court action on Stellweg’s motion, which was
granted on the condition that Stellweg pay Welch’s arrears. Stellweg thereafter moved to recover such monies
from Welch and to compel Welch to pay his half of the rent on an ongoing
basis.
The Court (Hon. Anil C.
Singh, J.S.C.) granted Stellweg’s motion, holding that an implied in law
contract existed between the co-tenants and that each tenant had “an
unambiguous legal obligation to pay rent.”
Generally, a contract is void unless it is both in writing and signed by
the parties to be bound. N.Y. Gen.
Oblig. Section 5-701(a). Notwithstanding,
a contract may be implied, either in law or in fact. 22A N.Y.Jur.2d Contracts Section 522. A contract implied in law is “an equitable
cause of action premised upon unjust enrichment, which is founded not on a
contract or agreement but rather on an obligation that the law creates in the
absence of an agreement when one party possesses what in equity and good
conscience the party ought not to retain and that belongs to another.” Id.
In Stellweg, the Court determined that,
as a matter of equity, it would be “unjust to relieve [the co-tenant] of his
obligation to pay his share of the back rent and his obligation to pay one-half
of the rent going forward.” The co-tenant was prohibited from entering the
premises completely due to his own wrongdoing.
Moreover, the occupying co-tenant was already physically harmed by the
co-tenant, and to be, in addition, financially harmed would not be an equitable
outcome.
The Court explained
that “an implied contract of this nature makes it possible for [an occupying
tenant] to remain in the loft, while preserving [an excluded tenant’s] right to
return to the loft when the Order of Protection expires.” Thus, despite the fact that the co-tenant was
not residing in the apartment, the Court held that he was still liable for rent
that accumulated during such time.
This decision is a
recent success for tenants who have been unjustly deprived of their co-tenant’s
rent contribution. Ms. Stellweg was
represented by your author’s firm, Ween & Kozek, LLP.
-Written by Michael P. Kozek and Jessica L. Drury
If it is the decision of supreme court, we can do nothing about it. We have to follow it. We cannot put any question on our judiciary system.
ReplyDeleteVery informative, recently my friend had the same issue with his roommate who refused to pay his part of the rent. Although a good friend of mine, but this is not fair to leave the burden on one’s shoulders when both signed as co-tenants.
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