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Scenarios in consideration:

I have a few different scenarios in mind.

  1. Landlord pays utilities. Non-signatory pays tenant for their stay in the apartment.
  2. Landlord pays utilities. Non-signatory lives for free in the apartment.
  3. Landlord pays utilities. Non-signatory doesn't pay money to live in the apartment, but is obliged (through oral agreement or contract) to pay in other ways, e.g. cleaning the apartment.
  4. Landlord doesn't pay utilities. Non-signatory pays tenant for their stay in the apartment.
  5. Landlord doesn't pay utilities. Non-signatory lives for free in the apartment.
  6. Landlord doesn't pay utilities. Non-signatory doesn't pay money to live in the apartment, but is obliged (through oral agreement or contract) to pay in other ways, e.g. cleaning the apartment.

In all scenarios, the landlord has been unaware of the non-signatory's stay. Also, I'd like to consider another conditional to the "landlord doesn't pay utilities", dividing all those scenarios into two, some of which the landlord only pays for water bills. This is because it seems to me, from experience, that water bills are special (perhaps very cheap or subject to different laws), as I've never seen an apartment listed where the water bills aren't paid for.


Reflections on the scenarios' legality:

I assume 1. is obviously illegal. The landlord receives an increase in their expenses without their consent, and the tenant is making money off of the landlord's property, again, without the landlord's consent. In scenario 4., the latter part also applies. I think maybe both 1. and 4. would be considered theft?

Number 2. is problematic, as the landlord still receives an increase in their expenses. However, if the tenant decides to simply shower more and to live more luxuriously all of a sudden, the landlord's expenses would increase due to the tenant's decisions. Surely, the tenants decisions aren't illegal in this scenario, and the landlord's only option is to crank up the lease. So, why would then the scenario be different, if the decision causing the landlord's increased expenses, is the decision to allow a non-signatory to live in the apartment? Just like how the tenant choosing to live more luxuriously is their right, a right uninfringed by the fact that it leads to increased expenses for the landlord, surely allowing someone else to stay in the apartment for free is also within the tenant's rights? Maybe the difference is that one expense increase is caused by the intensity of use of the product of the product's legal leaser, whereas the other is caused by the addition of an illegal leaser?

Number 5. is still problematic for those same reasons. For example, if the landlord pays the water bills, their expenses will increase a little. Also, the wear and tear of the apartment will be worse, thus increasing the expenses. Not sure if this is impacted by the existence of a deposit. Then again, wearing that isn't covered by the deposit will still be worsened by more people living in the apartment.

If say, number 2 and/or 5 are legal, I could see that 3. and/or 6. would still be illegal. I guess it depends on what is legally considered payment or not.


What counts as staying at an apartment:

Is the difference between staying at an apartment and frequently visiting and sleeping at an apartment of a quantitative and/or qualitative kind? A tenant's romantic partner is likely to do either, and I expect differentiating between those two possibilities would be tricky.

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  • You seem to think there is distinction in the scenarios. Either there are more people than the LL agreed to or not. What does the lease say? Why does it matter if the one roommate is getting cash, groceries, romance, or best bud points. Also the focus on utilities- other than water there won’t be a huge difference. Maybe a little more electricity, but most is going to things like the fridge- and if there is AC forget it- that are on no matter who is there.
    – Damila
    Commented Mar 1, 2022 at 5:12
  • @Damila I am asking this in the general, not in relation to any specific scenario, so I can't say what the lease says. However, surely many leases don't explicitly state that no more than the tenant(s) signing the contract can live there? So, in the case that a lease doesn't state this, what laws apply? Is the default that there can't be more people? I made the different possibilities because I suspected that details like who's paying the utilities and if the non-signatory parties were paying in some form or not would affect what laws apply.
    – user110391
    Commented Mar 1, 2022 at 21:12
  • "surely many leases don't explicitly state that no more than the tenant(s) signing the contract can live there?" Maybe many don't, but I expect that most do. Every lease I've event read included provisions about the occupants.
    – phoog
    Commented Mar 1, 2022 at 22:29
  • @phoog Yes, but that's not the point. Asking whether it's okay to have other people staying there when the contract explicitly says they cant, is a trivial question. That would just be asking if breeching a (legal) contract is legal, which it of course isn't. The question then obviously revolves around the cases in which such a thing isn't explicitly stated (thus making it about what the default is, i.e. what the laws say), and if the answerer so chooses, to what degree a landlord can even impose such restrictions given the laws on the subject.
    – user110391
    Commented Mar 1, 2022 at 22:33
  • "what the laws say and ... to what degree a landlord can even impose such restrictions given the laws on the subject": the relevant law in New York alone requires several paragraphs to describe. If you're not going to specify a jurisdiction, the question is too broad (even without considering that you're asking us to consider six -- well nine actually -- different combinations of financial arrangements).
    – phoog
    Commented Mar 1, 2022 at 23:49

1 Answer 1

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In almost every residential lease that I've ever written or reviewed, this contingency is provided for expressly in a term of the lease with several terms, one on who may reside pursuant to the lease, and another on subletting and assignments. Categories #1 and #4 are subleases. The other categories are species of guest arrangements.

Those provisions, when they are present, typically prohibit occupancy by anyone other than the adults who are signed tenants and their children, and typically prohibit subleasing without landlord permission which shall not be unreasonably withheld (with the original tenant as a guarantor of the subtenant's obligation).

In most jurisdictions, the default rule of law is that you may sublet or have a guest who doesn't violate building code requirements unless the lease provide otherwise, but landlord-tenant law isn't entirely uniform from jurisdiction to jurisdiction. Many U.S. states, U.S. cities, and foreign countries have detailed statutory or ordinance rules on the subject.

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  • I see. So even if a legal contract was made and signed, detailing the non-monetary payment the non-signatory is required to make in order to stay at the apartment, it would legally not be considered subletting in most jurisdictions?
    – user110391
    Commented Mar 1, 2022 at 22:28
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    @user110391 Probably not in most. There are dozens of jurisdictions out there and I'm sure there is an exception somewhere.
    – ohwilleke
    Commented Mar 1, 2022 at 22:33

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