Vacancy vs. Renewal Lease definitions

[brooklynrenting]

Hi,
I live in a 3-bedroom rent-stablized apartment in BK (lease up for renewal 5/1/16). We would like to have a fourth person, B, move in (my girlfriend and I are sharing a room) for the remainder of the term. As of now, the new person intends to stay on, while the other 3 of us (who are all on the lease) have not decided.

My landlord wants us to sign a short term lease (thru 4/30) with a legal rent of 107% what we are paying now, with an addendum bringing us back down to 100%.

My questions:
- Why does the landlord want to do this?
- Is the landlord allowed to require us to sign a temporary lease with a new roommate?
- If B is added to the lease starting in May, would this qualify as a renewal or vacancy lease?
- What is the definition of a vacancy lease? is it when *anyone* on the lease goes on or off the lease, or only when *everyone* on the apartment leaves? Is it something else?
- If B and 2 other people take over the lease in May, would it be a renewal or vacancy lease?
- Would him signing the 3-month lease with us impact this at all?

Thanks!
BR

[TenantNet]

Not addressing the extra roommate issue.

Your lease goes through 4/30, correct? There's no reason to sign a new or replacement short-term lease. The LL must offer you a new RS lease on DHCR form RTP-8 (see http://goo.gl/rDCwsU and read the instructions carefully). If you don't get a lease offer, there are penalties.

Also be aware that this year, for a one-year renewal, there is no increase. The RGB rate is 0%.

- Why does the landlord want to do this?

Don't know, did you ask him? Maybe he needs the cash flow?

- Is the landlord allowed to require us to sign a temporary lease with a new roommate?

No, it would be illegal for both parties to do so and would evade the rent laws.

- If B is added to the lease starting in May, would this qualify as a renewal or vacancy lease?

Adding a new tenant to the lease creates a new vacancy lease, not a renewal lease. That would allow the LL to add a vacancy increase, a longevity increase and any IAI increases. You should be able to have the new person come in as a roommate (but who is not on the lease).
Better to have "B" stay as a non-lease roommate.

- What is the definition of a vacancy lease? is it when *anyone* on the lease goes on or off the lease, or only when *everyone* on the apartment leaves? Is it something else?

Any new person on the lease would call for a vacancy lease. Of course, an entire new group of people would also require a vacancy lease.

BUT, having one person leave the unit does NOT create a vacancy lease. It would still be a renewal lease.

- If B and 2 other people take over the lease in May, would it be a renewal or vacancy lease?

If those 2 other people are new, then it would be a vacancy lease.

- Would him signing the 3-month lease with us impact this at all?

Again, a 3-month lease is illegal and invalid.

[Cranky Tenant]

Also keep in mind, under Rent Stabilization, the landlord is required to offer a renewal lease no more than 120 days, and no less than 90 days, before the lease expires. Then you have 60 days to decide and any lawful increase (in this case 0%) wouldn't kick in for 90 days.

So if your LL offered a lease Fed 4th, and the renewal lease is set to begin May 1st or you haven't received the standard RTP-8 then he's already late.

[BubbaJoe123]

Two things to be aware of. I very much doubt either would come up, but if the LL has a decent lawyer who was looking to make things difficult for you, he might play either card:

1. The landlord doesn't technically have to allow B to move in without being added to the lease. Roommate law only applies if there's a single tenant on the lease.

2. Technically (and this is virtually never enforced), it's a violation of NYC law for more than three unrelated adults to live in the same apartment. So, on that basis, person B couldn't move in at all.

[TenantNet]

Bubba, I think you're incorrect on the first point (and looking into it).

As for point #2, I've heard that, and it's mentioned from time-to-time, but have never seen the actual law with this restriction. What do you know on this?

[brooklynrenting]

Wow, very helpful! Thanks everyone.

I spoke to someone at the NYSHCR about adding roommates and he referred me to this passage:

"When two or more tenants are named on the lease, the number of tenants and roommates cannot exceed the number of tenants named in the lease. In all situations, occupancy may be restricted in order to comply with municipal regulations concerning overcrowding." (from here http://www.nyshcr.org/rent/faqs.htm#ol18)

His interpretation of this seemed to be that you can have as many roommates as you do people on the lease (3+3 = 6). I'm not sure if that's the correct reading or not, though.

[10ants]

"When two or more tenants are named on the lease, the number of tenants and roommates cannot exceed the number of tenants named in the lease. In all situations, occupancy may be restricted in order to comply with municipal regulations concerning overcrowding." (from here http://www.nyshcr.org/rent/faqs.htm#ol18)

I believe that the interpretation is as follows:
If a named tenant leaves, you can replace them with a roommate. So if you had 3 original tenants, you could renew the lease with two of them and have 'B' be a roommate, but you could not renew the lease with 3 of them and add a roommate.

As I understand the rules:
Remove Tenants
Renewal lease with fewer named tenants.

Roommate Leaves
Renewal Lease

Add Roommate to 1-tenant apartment
Renewal lease

Replace tenant with roommate in 2+ tenant lease
Renewal lease. Note that this is tricky -- if you went from 3 named tenants to 2 named tenants, and then added a roommate it would probably be ok, but I'm not sure about this case.

Add roommate beyond original # of tenants in 2+ tenant lease
New lease
E.g. if two people sign a lease and add a 3rd roommate, the LL can require a new lease because the number of unrelated occupants is higher, and there's higher wear and tear on the apartment.

Add new tenant
New Lease

Replace tenant with other tenant
New Lease


Hope this helps!

[TenantNet]

His interpretation of this seemed to be that you can have as many roommates as you do people on the lease (3+3 = 6). I'm not sure if that's the correct reading or not, though.

I don't think so, and perhaps Bubba might have been correct. First, that's a Fact Sheet, not a law or case decision with precedential effect.

But what that seems to say is that you have one tenant, you can have one roommate. But if you have two tenants (or more), you can't have any roommates.

Of course there are exceptions for family members. A court might allow a roommate where a husband and wife would be considered one tenant. But if the couple was unmarried, that would be considered two tenants.

There are many cases with varying outcomes.

And of course it all depends on if the LL objects. If there's no objection, then there's no problem.

[BubbaJoe123]

Bubba, I think you're incorrect on the first point (and looking into it).

As for point #2, I've heard that, and it's mentioned from time-to-time, but have never seen the actual law with this restriction. What do you know on this?

Regarding #1, the roommate law, my understanding of the passage cited above is that, in the event that there's more than one tenant on the lease, the TOTAL number of occupants can't exceed (without landlord consent, and in all cases governed by occupancy limits) the number of tenants on the lease. So:

1 tenant is allowed one roommate
2 tenants are not allowed a roommate

That's the interpretation at the Met Council site as well:

More than one person has signed my lease. Do I have the right to take in an additional person as a roommate?

If two or more people signed your lease (for rent control: if there is more than one tenant of record) you are not entitled to have any roommates—even if the cosigner is your spouse or another family member. But if one or more of the tenants named on the lease (or one or more of the rent-controlled tenants of record) moves out, the departing tenant or tenants can be replaced by the same number of roommates. For example, if three people cosigned a lease and two of them move out, the remaining tenant may have two roommates.

http://metcouncilonhousing.org/help_and ... e#answer04

Regarding #2, I've read about it in the Times (link below), and I believe the relevant section of the Housing Maintenance Code is Sec. [D26-1.07] 27-2004 Definitions, subsection a, paragraph 4 (second link below).

http://www.nytimes.com/2010/03/29/nyreg ... mates.html
http://tenant.net/Other_Laws/HMC/sub1/art1.html#27-2004

[TenantNet]

Looking at 10ants post, I think he's mostly correct, but doesn't offer any source.

One scenario, which he notes can be tricky, is sort of a grandfathering interpretation. But he also states, "So if you had 3 original tenants, you could renew the lease with two of them and have 'B' be a roommate" which is similar ... and also tricky. There's no way of knowing how a court would see those situations.

The problem in my view is where you have 3 bedrooms and 2 tenants, it makes no sense to say you can bring in a roommate. That's essentially saying you're not allowed to use the 3rd BR.

[TenantNet]

Bubba, thanks for the clarification.

However realize that Met Council is not a reliable source. Their information is often incorrect.