Ask the Attorney: A Co-op Subtenant Wants a Roommate. What Do You Do?
June 7, 2012 — A reader writes: A shareholder in our co-op has moved out and now has a subtenant who went through all the proper co-op channels. Now this subtenant wants to bring in an unrelated roommate. Can the board require this new person to apply like the original subtenant, or is the original subtenant covered under the applicable New York City law?
New York State adopted the colloquially titled Roommate Law — formally, New York Real Property Law, Section 235f, "Unlawful Restrictions on Occupancy") in 1983 in part to deal with widespread controversies regarding subleasing. Early on, the courts decided that the Roommate Law applies to co-ops, which operate under a proprietary lease.
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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