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Number of Roommates Allowed

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Number of Roommates Allowed

Postby consigliere » Thu Apr 18, 2002 8:12 pm

Unless the lease grants greater rights, the Roommate Law (Real Property Law §235-f) allows a sole tenant who is party to a lease to have immediate family members, one roommate, and the dependent children of the roommate live in the premises.
 
Unless the lease grants greater rights, if two or more tenants are parties to a lease, immediate family members of the tenants are allowed, but no roommates are allowed, except if a tenant moves out. Then one roommate (and the roommate's dependent children) can take the place of each departing tenant. And at least one of the original tenants (or a tenant's spouse) has to occupy the premises as a primary residence.
 
Real Property Law §235-f(4):
 
Any lease or rental agreement for residential premises entered into by two or more tenants shall be construed to permit occupancy by tenants, immediate family of tenants, occupants and dependent children of occupants; provided that the total number of tenants and occupants, excluding occupants' dependent children, does not exceed the number of tenants specified in the current lease or rental agreement, and that at least one tenant or a tenants' spouse occupies the premises as his primary residence.
 
See §235-f in Real Property Law - Article 7.
 
consigliere
 
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Re: Number of Roommates Allowed

Postby consigliere » Sat Aug 03, 2002 11:22 am

From the decision, below, of the Appellate Division, First Department, in Roxborough Apts. Corp. v Becker, it looks like a tenant will be limited to having only one roommate (and the dependent children of that roomate) under the provisions of a very common form lease used in New York -- that of the Real Estate Board of New York (REBNY):

Roxborough Apts. Corp. v Becker

Appellate Division, First Department
Decided on July 25, 2002
Tom, J.P., Andrias, Rosenberger, Ellerin, Wallach, JJ.,
Cal. No. 5690

Roxborough Apartments Corp., Petitioner-Respondent,
v
Bruce Becker, Respondent-Appellant.

Order of the Appellate Term of the Supreme Court, First Department, entered December 6, 2000, reversing an order of the Civil Court, New York County (Lucy Billings, J.), entered on or about September 3, 1999, which, in a holdover proceeding, had granted tenant's motion to dismiss the petition, denied tenant's motion and reinstated the petition, unanimously affirmed, without costs.

Appellate Term correctly held that the lease reasonably limited occupancy of the rent-stabilized apartment to one roommate. The lease provided for occupancy "by the tenant or tenants named above and by the immediate family of the tenant or tenants and by occupants as defined in and only in accordance with Real Property Law §235-f." Real Property Law §235-f(3) provides that a residential lease ". . . entered into by one tenant shall be construed to permit occupancy by the tenant, immediate family of the tenant, one additional occupant . . .". The lease at issue bore the name of and had been signed by one tenant. Landlord's possessory proceeding is based on breach of the lease provision, not §235-f itself.

We note that respondent's tenancy in this four-bedroom apartment dates to 1977. The then-owner apparently allowed respondent to share the premises with three roommates. The former owner sold to a new owner in 1989 who in 1996 sold to present petitioner. Thus, unless there was a provision in the original lease and all subsequent renewal leases prior to 1989 limiting the number of roommates to one, paragraph 1 of the 1989 lease might be invalid pursuant to Rent Stabilization Code §2522.5(g)(1), which requires landlords to offer rent stabilized tenants renewal leases containing the same terms as the expiring lease. Further, even if all prior leases limited the number of roommates to one, there is a question presented as to whether the prior owners waived any rights under the lease regarding occupancy limits, and whether such a waiver would bind the present petitioner.

Accordingly, inasmuch as respondent-tenant has not yet answered the petition, he is free to raise any defenses available to him.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 25, 2002

CLERK

.
consigliere
 
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Joined: Sun Mar 03, 2002 2:01 am


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