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I will be beginning a lease in a 1 bedroom privately owned non rent stabilized apartment on june 1. I will be leaving for a little more than a month to Ohio for the summer. My roommate who plans to live there with me the entire year wants to move in June 1, about 6 weeks before I will move in.
I understand that regardless of my lease the NY Roommate Law allows me to share my apartment with one other occupant regardless of their relation to me. The clause specifies that this must occur as the apartment is mine, the tenant's, primary residence.
I wonder what defines the term primary residence, and whether or not I can consider it my primary residence for those few weeks. I will be living there for 46/52 weeks of the year, and the utility bills will be in my name. I will be registered to vote and will be changing all my addresses to the address as soon as the lease begins.
My concern is that this may be considered subletting, as my roommate plans to live there for a portion of time where I, the tenant, will technically be vacant.
How is a roommate different from a cotenant, a subtenant/subletter, a family member who lives with me, or a guest?
"The word roommate is used in everyday language to describe many types of situations where two or more unrelated people share the same apartment. However, there is a legal distinction between the different types of arrangements, and it’s important to know which one applies to you.
Your rights vary depending on the arrangement. What matters in court, if you ever end up there, is what the actual situation is, not what you called it.
Roommate: In this information sheet, a roommate refers only to a person who is not named on the lease of the apartment he/she shares with the prime tenant or leaseholder, and is not to be confused with the following:
A cotenant is named on the same lease as one or more other people who all share the same apartment. Cotenants equally share the full rights and responsibilities of the tenancy.
A subtenant or subletter is someone who rents an apartment from the prime tenant (rather than from the landlord) for a period of time when the prime tenant is temporarily away. If someone lives in your apartment while you live elsewhere most of the time, legally that person is not your roommate; he/she is your subletter (either legally or illegally). Many tenants have the right to sublet by law, but you must follow proper procedures and/or obtain written consent from your landlord. If you don’t, it can lead to eviction. (Read more about subletting your apartment.)
A family member is a member of the primary tenant’s family who lives in the apartment but is not named on the lease. Some family members, in certain situations, have succession rights: They can take over the apartment when the prime tenant moves or dies. (Read more about succession rights in rent stabilized and rent controlled apartments.) Also, when determining the right of tenants to have an additional roommate, certain family members are not counted.
A guest or licensee is a person who has permission from the primary tenant to stay in the apartment temporarily, but who has no written agreement and does not pay rent. For example: Your cousin comes to stay with you and sleeps on your couch for a week."
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