Ask the Attorney: A Co-op Subtenant Wants a Roommate. What Do You Do?

The Roommate Law grants the right to have a roommate to a "tenant," whom it defines as "a person who is either a party to the lease or rental agreement for such premises." So that language is almost certainly broad enough to cover not only the proprietary lease between a co-op and a proprietary lessee, but also the sublease between a proprietary lessee and a subtenant. In short, a co-op sublease is a type of “lease or rental agreement," and thus, according to the law, the sublease should be construed to permit occupancy by a roommate of the subtenant.

The subtenant is allowed to charge the roommate whatever the market will bear — although the subtenant must reside there simultaneously with the roommate. If the subtenant is the sole named lessee in the sublease, however, then only one roommate is allowed, although both the subtenant and the roommate may bring in family members so long as the total occupancy does not exceed legal limits.

The law's applicability to condos is far more cloudy. The Roommate Law itself does not permit a unit-owner to take in a roommate; instead the condo bylaws would determine that. In fact, most do not expressly allow it, although New York State and New York City anti-discrimination laws might require it.

Robert Tierman is a partner in the law firm of Litwin & Tierman.

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