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The 80 Percent Carpet Rule

Will a court enforce the typical proprietary lease house rule requiring that 80 percent of the floor area of living, dining, and bedrooms in a co-op be carpeted? The answer was clearly "yes" in Fraken Builders Inc. v. Joanne M. Ciccone, even when the co-op occupant argued that she was allergic to the carpeting and thus should be exempted from the rule.

In this landlord-tenant summary holdover proceeding, petitioner Fraken Builders sought the termination of respondent Joanne Ciccone's sublease on several grounds, all centering around Ciccone's alleged failure to install rugs or carpeting in a manner that would comply with her lease. Paragraph 11 of the house rules, incorporated into the lease for Ciccone's apartment 2J at 773 Pelham Road, New Rochelle, New York, provided that "[a]partment floors shall be covered with rugs or carpeting to the extent of at least 80 percent of the floor area of each room [exempting] only kitchens, pantries, bathrooms and hallways."

As the testimony at trial confirmed, the evident purpose of this lease provision was noise abatement since the court noted that one shareholder's floor was another shareholder's ceiling. Other house rule provisions further delineated the general type of carpet padding that should be installed underneath the rugs/carpeting in an apartment.

In this case, the co-op claimed that the shareholder did not abide by the lease's carpet requirement by failing to install a rug or carpet that covers 80 percent of the floor area, and by failing to install under-padding. As a result, the co-op contended, noise from the shareholder's apartment was not sufficiently abated so that the downstairs neighbor repeatedly complained of noise to the co-op, and ultimately to the New Rochelle Police, to which complaints the shareholder responded in kind. The co-op also claimed that, in violation of a separate lease provision, the shareholder had installed linoleum on parts of the apartment floors. After properly serving a notice to cure and inspecting the apartment for compliance, the co-op brought a holdover proceeding, seeking eviction for each of the above-mentioned reasons.

In her answer to the petition, the shareholder denied the material allegations and raised several affirmative defenses, technical and substantive. In essence, Ciccone denied that she was responsible for any unreasonable noise. She said that she had effectively complied with the lease's carpet requirement despite the fact that, admittedly, less than 80 percent of the apartment's total floor area was covered by rugs or carpeting. Moreover, she claimed that, in view of her allergic/asthmatic physical condition, enforcing the rug/carpet requirement of the lease would run afoul of the implied warranty of habitability under Section 235-b of the Real Property Law (RPL).

At trial, the co-op elicited the testimony of several witnesses, including its building manager who had, among other things, conducted initial negotiations with Ciccone; the former occupant of the shareholder's apartment, and the then-present (now former) downstairs neighbor, who testified concerning her noise complaints. Ciccone testified on her own behalf and also called, among others, an expert witness, Dr. Sally Finley, a Columbia University professor who testified concerning allergies, asthma, and dust caused by rugs and carpeting.

Stripped of its veneer of allergies, linoleum, padding, and noise complaints, the case, said the court, boiled down to two central issues: (1) did rug or carpet coverage of less than 80 percent of the total floor area of the rooms specified in the lease, but more than 80 percent of the typically traveled floor area of such rooms, constitute compliance with the lease requirement that floors "be covered with rugs or carpeting to the extent of at least 80 percent of the floor area of each room," and (2) did such a lease provision compelling rug or carpet installation amount to a violation of the statutory warranty of habitability under Real Property Law Section 235-b under the facts of this proceeding?

Since the court found, for the reasons set forth below, that the answers to both questions were in the negative, the shareholder's defenses failed, and the co-op was entitled to judgment.

Paragraph 11 of the house rules, attached to and incorporated by reference in the lease, clearly provided, that the "[a]partment floors shall be covered with rugs or carpeting to the extent of at least 80 percent of the floor area of each room excepting only kitchens, pantries, bathrooms, and hallways." The shareholder testified that before she moved into her apartment, she advised the co-op that, due to her allergies, she would not be using wall-to-wall carpeting, but rather machine washable small bathroom-type throw rugs as her floor covering. The co-op's witnesses denied that any such conversation took place. Be that as it may, the court said that the record was devoid of any evidence that the shareholder was advised that she was free to cover less than 80 percent of the floor area of each prescribed room with rugs or carpeting.

Ciccone proceeded to purchase and place numerous small rugs on her apartment floors. However, as the shareholder testified at trial, the sum of the area of all such rugs did not equal a square footage amounting to at least 80 percent of the floor area of the requisite rooms. According to the shareholder's own measurements and calculations, of the total floor area of the living and dining rooms - 585 square feet - only a 363 square-foot-area (or 62 percent) was covered by the throw rugs. Of the bedroom's 191 square feet of floor space, roughly 124 square feet (65 percent) was covered.

The shareholder argued, however, that such percentages of floor coverage were misleading since the rugs were strategically placed in pathways where the shareholder was most likely to walk, and because such total floor area should be reduced by the parts of the floors covered by boxes and furniture admittedly placed there by shareholder. If such allegedly untrafficked space is deducted from the total square footage of the relevant floors, then, the shareholder contended, she had covered more than 80 percent of such reduced total.

The court said that the shareholder had cited no law in support of her rather ingenious argument, nor had the court located any authority to support the proposition that "80 percent of the floor area" means 80 percent of some figure other than the total floor area. In the court's view, this absence of case law was, arguably, a good indicator that the lease provision should mean what it said. The lease spoke in terms of total "floor area," not total likely traveled space, or total space not temporarily covered by boxes or furniture.

Indeed, the construction urged by Ciccone would prove difficult, if not impossible to ascertain or enforce, noted the court. It would, in effect, require a co-op, when evaluating lease compliance, to individually measure each item on the apartment floor - each piece of furniture, each box, each table leg, each chair leg - and then make a subjective judgment as to which routes a reasonable apartment dweller would travel in the course of a given day. To be sure, such measurements and calculations were not contemplated by the straightforward lease provision that rugs or carpeting cover at least 80 percent of the floor area.

In this case, Ciccone conceded that she never questioned the 80 percent requirement; she only questioned the type of rug or carpeting that would be allowed. However, even if small throw rugs rather than wall-to-wall carpeting or area rugs were deemed permissible, the court held that the shareholder still failed to cover 80 percent of the applicable floor area in her apartment, in contravention of her lease.

The shareholder also maintained that the carpet requirement of the lease should not be enforced with respect to her because doing so would violate the implied warrant of habitability contained in every lease under RPL Section 235-b, which provides:

"In every written or oral lease or rental agreement for residential premises the co-op or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other shareholders or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety. When any such condition has been caused by the misconduct of the shareholder or lessee or persons under his direction or control, it shall not constitute a breach of such covenants and warranties."

The shareholder asserted that, in view of her allergies/asthmatic condition, enforcement of a lease provision mandating rugs or carpeting would create a condition that would be "dangerous, hazardous or detrimental to [her] life, health or safety." Put simply, the court concluded that the shareholder's position was meritless; it would, at once, stand the implied warranty of habitability on its head, and was contradicted by evidence shareholder herself adduced at trial.

As its very language suggested, the court said that Section 235-b was designed to insure that every apartment, at a minimum, meet a threshold standard that the premises "are fit for human habitation." As the Court of Appeals stated in Solow v. Wellner, "the implied warranty protects only against conditions that materially affect the health and safety of shareholders or deficiencies that 'in the eyes of a reasonable person ... deprive the shareholder of those essential functions which a residence is expected to provide.'" Moreover, Section 235-b applies to such conditions that are created by or knowingly tolerated by the co-op. Section 235-b expressly excludes from its protective orbit the conduct of shareholders or others of which the co-op is unaware or unable to control.

Here, the co-op was not accused of creating or acquiescing in a condition that could be characterized as a defect that "deprives the shareholder of the essential functions which a residence is expected to provide." Indeed, the co-op in this case, said the court, had done nothing more than require, by lease provision, that the shareholder take steps to cover 80 percent of the floor, steps that would serve a legitimate and reasonable purpose: noise abatement for the benefit of other shareholders. While it is conceivable that a co-op could conjure up a lease requirement that would require shareholder conduct that falls within the statutory proscription, such as, for example, requiring shareholders to harbor vermin or install highly flammable carpet or other dangerous furnishings, such provisions would be contrary to public policy and would violate other statutes and regulations designed to protect health and safety. In any event, said the court, that is far from the case here.

Moreover, even assuming that, as Ciccone testified, certain carpeting was detrimental to her health because of her allergic condition, the testimony elicited by the shareholder's expert, Dr. Finley, effectively undermined her position. Dr. Finley testified that hypoallergenic carpeting was available for purchase, and that other methods - such as frequent vacuuming with a HEPA vacuum - can help minimize dust conditions complained of by shareholder. Dr. Finley also stated that even bare, uncarpeted floors must be cleaned regularly in order to prevent the type of asthmatic allergic reaction complained of by the shareholder.

Thus, by the lease provision at issue, the co-op did not prohibit carpeting that, if properly cared for, would prove safe to the shareholder's health. Rather, the lease provision, in seeking to achieve a legitimate noise abatement purpose, allowed any shareholder to, within broad outlines, choose carpeting or rugs to suit his or her particular health requirements. The court said that such a provision, under the facts adduced at trial, clearly failed to amount to a breach of the implied warranty of habitability set forth in RPL 235-b.

Accordingly, since the court found that the shareholder was, and remained, in violation of a material term of her lease, it held that the co-op was entitled to a judgment for possession.

Comment: This case involved a sublease in a co-op apartment building. The co-op here was a proprietary lessee seeking to enforce its house rule about required floor coverings against a shareholder occupant of the apartment who was obviously the subject of complaints from adjacent occupants. Undoubtedly, the co-op encouraged this action by its shareholder. Because the sublease incorporated by reference the house rules from the proprietary lease, the shareholder was bound to observe those rules. The significance of this case is that the court sanctioned enforcement of required floor coverings and thus validated this common and widely used co-op house rule.

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