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Who can the board disallow?
AUTHORBraverman, Edward T.
What a can board to do restrict occupancy? A hypothetical situation when an original owner moves out and a violent sibling moves in. Co-ops are urged to tighten up the language in their proprietary lease to make it clear what their intention is.
You’re on the board admissions committee. You’ve spent countless hours
reviewing Steve Ripper’s application. You’ve interviewed Mr. and Mrs.
Ripper. Their financials are in order. They seem to be a great couple. You
approve them. The full board approves them. They move in. And then Steve’s
violent-tempered brother, Jack, takes up occupancy in the apartment and
Steve and his wife move out.
What to do? The apartment corporation sends a notice to cure or face
eviction for having an unauthorized occupant. But, then, Steve points out
that his proprietary lease says that the apartment can be used by “the
lessee, the family, employees, and servants of the lessee...” Steve argues
that his brother Jack (a family member) falls within the use provision of
your proprietary lease. It doesn’t matter that Steve and his immediate
family have moved out of the place because of his brother’s violent temper.
In one way or another, the foregoing scenario has taken place hundreds of
times within the New York cooperative community. So what can be done? The
very heart of cooperative ownership is the apartment corporation’s ability
to restrict the use and occupancy of an apartment. New York’s highest court
has confirmed the right of a cooperative housing corporation to admit only
those individuals with whom the existing residents wish to share their
There is, however, this “family” problem lurking in the use clause of many
proprietary leases. Several variations are employed in almost every lease
currently in existence. Basically, the language says that the apartment
cannot be occupied for any purpose other than as a private dwelling for “the
lessee, the family, employees, and servants of the lessee.” In addition,
your proprietary lease may contain an additional clause permitting “guests”
to occupy the unit for up to 30 days without obtaining approval.
The cases interpreting the provision are sparse and lack appellate
authority. However, some lower court cases have focused on the family,
employees, and servants provision and its first cousin, the conjunctive
clause (“for the lessee and the family, employees, and servants of the
lessee”). In that case, the word “and” takes the place of the comma.
Court opinions have indicated that it was the intent of the corporation for
the lessee to be in occupancy, together with his family, when the word “and”
is used. However, when a comma is used after the word lessee, these same
courts have held that any of the enumerated parties may occupy the apartment without the lessee. Therefore, it is a good idea to have your lease modified to make it abundantly clear that any enumerated family member of employee can only be in residence when the approved lessee himself is in occupancy.
The two areas to look at involve guests and roommates.
The Guest. The co-op should seriously consider some type of proprietary
lease restriction for guests who regularly reside in an apartment for more
than a month when the named tenant-shareholder is not in occupancy. It was
never the intent of the co-op to permit an apartment to be used as a bed and
breakfast or other type of short-term residential facility for guests or
other invitees of the named tenant-shareholder.
The Roommate. The right of the cooperative housing corporation to restrict
the occupancy of each of its apartments has been partially eroded by the New
York State Legislature. This encroachment upon the corporation’s right to
control the occupancy of an apartment is commonly known as the “Roommate
Law.” First enacted in 1983, and amended several times thereafter, the rule
states that it is unlawful for a landlord to restrict occupancy of a
residential premises, by express lease terms or otherwise, to a “tenant or
the tenant’s immediate family.”
Such a provision in a rental agreement would be unenforceable. This
provision has been held to be applicable to co-ops and their
The statute provides that when a rental agreement is with one tenant, he
shall be permitted one additional occupant and the dependent children of the
occupant in residence. If the rental agreement is entered into with two or
more tenants, the lease shall permit occupancy by multiple occupants and
their dependent children, providing the total number of tenants and
occupants (excluding occupants’ dependent children) does not exceed the
number of tenants specified in the lease.
In both instances under the Roommate Law, the tenant or the tenant’s spouse, must occupy the premises as a primary residence. Since the Roommate Law has been held to apply to cooperative housing, no current lease or amendment can eliminate the right of a tenant-shareholder to have a roommate (same sex or different sex) reside within the cooperative apartment, provided the named lessee maintains his apartment as his primary residence.
All things considered, a cooperative housing corporation, through
inadvertence or inattention, should not permit the occupancy of its
apartments by other than those who have been interviewed and approved by the board. This protection can easily be accomplished by each building’s
counsel, through minor modification of the proprietary lease. Such
modification would mandate that a family member and/or employee could only occupy the apartment when the named tenant-shareholder is present.
The board of directors should also review the cooperative’s bylaws to
determine if a similar and mirror provision is required in such document.
Even with such change, the tenant-shareholder has the right to secure a
roommate for his apartment, with or without the consent of the board. This
right is limited by the statutory mandate that the tenant-shareholder
maintain his apartment as his primary residence.