Habitat publisher Carol J. Ott discussed that question with two attorneys: Bruce Cholst, a partner at Rosen Livingston & Cholst, and David Byrne, a partner at Herrick Feinstein. This transcript of a "Legal Talk" podcast has been edited for clarity.
What is the Roommate Law?
Bruce Cholst: Basically, the Roommate Law is a [New York State] statute. Under certain circumstances, it permits a residential tenant to bring in persons, other than those listed on the lease, to live in the tenant's apartment without the landlord's prior review or consent. It strikes at the very heart of cooperative living, though, which is to be in an environment where your neighbors are vetted. It allows a lot of unauthorized residents in the building.
David Byrne: My sense is that in this particular instance, the Roommate Law is not going to prohibit the board from engaging in its normal application and approval process. As I understand it, the Roommate Law is really protective of the tenant-shareholder while he or she resides in the apartment. So, once that situation no longer exists, then I think that the Roommate Law won't provide a shield for the subtenant.
Cholst: It's important to note that for the Roommate Law to apply as a shield, the tenant of record must be the primary resident. And in terms of this case, I think an argument can be made that it would not apply to roommates of an approved subtenant.
Byrne: In some respects, it certainly undercuts the concept of cooperative living and the control aspect that is the focus of a lot of boards. However, it allows the shares to become a little more valuable because they become more condominium-like. The owner has more flexibility in taking in someone without going through an approval process.
Cholst: I wonder if people who are opting to live in a co-op rather than a condo would consider that a benefit? The stated purpose of the Roommate Law, when it was enacted about 30 years ago, was to help tenants meet their rental costs. And it certainly does help people who might have lost their jobs in this economy. It helps them stay afloat by letting them bring in a boarder, so, to that extent, it does help stabilize co-op associations.
Can the board require notification when a roommate moves in?
Cholst: One thing the statute requires is that the tenant who's bringing in the roommate must notify the landlord, if the landlord requests it, about who the roommate is. And I think, at the very least, boards should know who is residing in their building. At a minimum, they should ask for the name and the address of the roommate. In my opinion, the roommate occupancy is not subject to board approval.
Can the board ask to vet the roommate before he or she moves in?
Cholst: I don't believe they have that power. They can certainly do it if the proposed subtenant, out of a desire to get the lease, voluntarily approves and submits the roommate to review of the board. But I don't think they have the power to compel it. And legally, I think, they would be required to evaluate the subtenancy on its own merits.
One of the major tasks of a board is to approve who buys apartments and who can live in them. The Roommate Law seems to really undercut that responsibility.
Cholst: You're absolutely right.
Byrne: Regina's board approved the subtenant. They already have a policy that allows non-shareholders to live there. In some respect, they lose the moral authority to decide whether someone other than a shareholder can live in their building by this fact.
Cholst: I think it does do an end run around the board's approval. I think it's not really so much about moral authority, but about how it restricts the cooperative concept of screening prospective occupants. It absolutely does strike at the very heart of that concept.
Sounds like Warren's building is stopped in its tracks. They can't require that the roommate apply to live in the building, despite the fact that the subtenant had to.
Cholst: Under the Roommate Law, I don't believe they can.
Byrne: I don't think so, either. But they certainly would have a right to know who the roommate is, for safety and security purposes.
Cholst: The way the statute reads, the initial obligation to notify the landlord — which in this case is the board – is on the roommate, or the tenant who brings in the roommate. Notification must be done within 30 days. If it isn't, then the landlord has a right to ask, and this response must be within 30 days. A roommate is not a sublet situation; it is separate and distinct. Boards should be very careful before jumping to conclusions that an unauthorized occupancy is an illegal sublet. They don't want to start an illegal sublet proceeding and then learn that this is a valid roommate in accordance with the Roommate Law. The board should do [its] investigation up front before pulling the trigger.
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