How to Handle the Addition or Removal of Cotenants

Cotenants are two or more tenants who rent the same apartment under the same lease. Sometimes cotenants sign at the same time, or a cotenant may be added later to an existing lease. Cotenants are each 100 percent responsible for carrying out the lease agreement, including paying all the rent. When one cotenant leaves, the remaining cotenant remains fully responsible for carrying out the agreement.

Over the course of managing your building, you may face unusual situations involving cotenants, under either rent-stabilized or unregulated leases. It’s important to review considerations relevant to your response to requests for the removal or addition of cotenants. Here are some frequently asked questions and factors to consider in responding.

Removing Departed Cotenant’s Name from Lease

Q A cotenant told me that the other cotenant moved out of the apartment, and asked me to remove the departed cotenant’s name from the renewal lease I’ll be sending. Should I comply with this request?

A Under rent stabilization, if a cotenant moves out, the remaining cotenant is entitled to a renewal lease. If the lease is unregulated, whether you must renew the lease for a remaining cotenant may depend on what the lease says.

In either case, before you issue a renewal lease in the remaining tenant’s name only, you should ask for verification, such as a letter from the departing cotenant. If one cotenant wishes to have a new lease naming him only, he should get the moving cotenant’s consent in writing. You may not pick sides and renew only one of the current named tenants without consent of the other.

A cotenant’s letter ideally should state that he’s moved from the apartment and wants his name removed from the renewal lease. If the remaining cotenant claims that this isn’t possible—for example, because the cotenant has moved out and can’t be reached—you can ask for a letter signed by the remaining cotenant stating that the cotenant has moved and wants his name removed from the renewal lease. But keep in mind that this is a little more risky.

If the removed cotenant with the right to a lease renewal shows up, he may claim that you improperly removed his name from the renewal lease. And the cotenant could file a complaint with the DHCR, claiming that he’s entitled to have his name put back on a rent-stabilized renewal lease.

If you can’t get this type of statement, keep the name of the cotenant on the renewal lease. If the cotenant has really moved out, he won’t sign the renewal lease that you’ve offered.

Q Can I refuse to add one cotenant’s name to a renewal lease offer?

A Under rent stabilization, no. The owner cannot decide arbitrarily to remove a cotenant’s name from an offered renewal lease. In one case, a mother and son were both named cotenant on the rent-stabilized lease. The owner issued a renewal lease in the mother’s name only because he believed the other tenant did not occupy the apartment as his primary residence. The DHCR ruled that the cotenant’s name was improperly omitted from the renewal lease. The owner was required to either renew the lease on the same terms and conditions or send a timely lease nonrenewal and termination notice alleging nonprimary residence [Edgemont Associates LLC: DHCR Adm. Rev. Docket No. AN910043RO (1/10/13)[LVT #24668].

Q What if a cotenant remains but won’t sign an offered renewal lease?

A There may also be a situation where a co-tenant remains in an apartment but doesn’t sign a renewal lease because he no longer wishes to have the responsibility of being a tenant. Since RPL §235-f permits a tenant to have a non-tenant roommate, there’s no prohibition against a former co-tenant remaining as a roommate of the other co-tenant in the apartment. However, it would also be preferable in this situation to receive confirmation of the status from the non-signing co-tenant.

Collecting Rent Increase from Remaining Tenant Because Cotenant Moved Out

Q At the written request of a cotenant, I removed his name from the offered renewal lease. Am I entitled to collect a vacancy increase from the remaining cotenant?

A Under rent stabilization, no. If a remaining rent-stabilized tenant stays on as the only tenant and signs up for a new term, it’s considered a renewal lease. In one case, the DHCR ordered an owner to refund a $15,000 rent overcharge for improperly collecting a vacancy increase from one cotenant after he renewed his lease without the other cotenant [Kostas and Michael Realty Corp.: DHCR Adm. Rev. Docket No. OI410003RO (2/6/01)(LVT #14882)].

Collecting Rent Increase for Adding Cotenant

Q May I collect a vacancy increase for adding a cotenant’s name when a lease expires?

A Yes. In most cases, a vacancy lease occurs when one tenant vacates an apartment and a new one moves in. However, a “vacancy” lease can also occur if an existing tenant asks the landlord to “add” someone to the lease, since this is then considered a “new” lease. Under rent stabilization, if you give a remaining tenant and a new cotenant a requested lease, you can charge the vacancy increase permitted under rent stabilization.

An exception to charging the vacancy increase applies under rent stabilization if the cotenant you add is the tenant’s spouse. You are required to put spouses on the stabilized lease upon request and cannot charge a vacancy increase [Hunters Point South Borden Housing Development: DHCR Adm. Rev. Docket No. JV110054RO (2/15/22)(LVT #31884)]. However, if a rent-stabilized tenant asks you to put, for example, his son-in-law or domestic partner on the lease, you can charge the vacancy increase if a new lease is signed by both as cotenants, or simply refuse to add these individuals to the lease as cotenants [Saunders: DHCR Adm. Rev. Docket No. HW610005RT (12/11/19)(LVT #30645); 140 East 46th Street LLC: DHCR Adm. Rev. Docket No. KN410012RO (6/24/22)(LVT #32122)].

No Vacancy Deregulation Permitted When Adding Cotenant

Q Can a rent-stabilized apartment be vacancy-deregulated when a new cotenant is added and the rent is increased?

A No. Although vacancy deregulation no longer exists, apartments lawfully deregulated prior to June 14, 2019 remain deregulated. For vacancy leases resulting from the addition of cotenants to rent-stabilized units, courts and the DHCR have ruled that, since there was no actual vacancy, apartments could not be vacancy-deregulated under these circumstances [200 Haven Owner, LLC v. Drachman: 2023 NY Slip Op 23294 (App. T. 1 Dept. 9/28/23)(LVT #32821); 13 Prince Owner, LLC: DHCR Adm. Rev. Docket No. LO410023RO (8/3/23)(LVT #32930)]

Accepting Replacement Cotenant

Q After a cotenant moved out of an apartment, the remaining cotenant asked to me to put a new cotenant’s name on the lease to replace the cotenant who moved. Must I accept the person the remaining cotenant wants me to add to the lease?

A No, unless the replacement cotenant is the tenant’s spouse. Under rent stabilization, you are not obligated otherwise to add anyone’s name to the lease or renewal lease. If a remaining tenant wants you to add a new cotenant to the renewal lease, you have two options. The first is to add the new cotenant’s name to the lease, which would allow you to collect a vacancy increase when you sign a lease. Also, the new cotenant becomes responsible for paying the rent. The second option is to renew the lease in the name of the remaining cotenant alone.

Owner Responsibility for Cotenant Disputes

Q What, if anything, must I do if one tenant asks me to resolve a dispute with a cotenant?

A This question has come up in court disputes. In one case, where two rent-stabilized tenants sued their other two cotenant family members, they sought an injunction against the owner who had started an eviction action against them. The court ruled that the owner had no duty to control the tortious conduct alleged by some of the tenants against others [Incorvaia v. Incorvaia: 2024 NY Slip Op 651716 (Sup. Ct. NY; 7/31/24)(LVT #33339)]. In another case where a veterans’ organization paired two cotenants in housing that they provided, the court also found no liability for the housing provider as a result of the actions between the cotenants [Duncan v. Black Veterans for Social Justice, Inc.: 2020 NY Slip Op 20274 (Sup. Ct. Kings; 10/23/20)(LVT #31124)].

If a dispute between cotenants is causing objectionable conduct or other conditions that threaten the rights of other building tenants to quiet enjoyment, you may have to consider whether to commence an eviction proceeding based on nuisance or violation of lease obligations.

Pursuing Former Cotenant for Back Rent Owed

Q Can I sue a former cotenant for unpaid back rent?

A Yes, but check for applicable time limits for doing so. In one case, an owner sought over $6,000 in back rent from a former cotenant in Civil Court four years after the money was due. The court dismissed the case, citing the three-year statute of limitations under CPLR §305 [KRE Bklyner 23 Menehan LLC v. Fortune: 2026 NY Slip Op 50634(U) (Civ. Ct. Kings 4/21/26)(LVT #34200)].