TenantNet Forum

Where tenants can seek help and help others



Roommate Advice and the Roommate Law RPL 235-f

Basic Reference Documents

Moderator: TenantNet

Roommate Advice and the Roommate Law RPL 235-f

Postby TenantNet » Mon Jul 10, 2006 9:01 pm

For text of the Roommate Law, see the following post in this thread.

Roommate Advice
By Lynn Armentrout, Esq.
October 2005 (revised February 2006)

Whether you are contemplating or currently in a roommate situation, there are two things you should do: (1) get to know your legal rights and obligations, and (2) have a written agreement with your roommate.

You have the right to have a roommate

A tenant of an apartment, rent-regulated or not, has the legal right to have at least one adult roommate (with or without dependent children). The law requires the tenant to notify the landlord of the name of the roommate. (While there does not appear to be any penalty for failing to do so, it may nevertheless be advisable, depending on the circumstances.)

If only one tenant is named on the lease, then that tenant may have only one adult roommate. However, a landlord may not evict a tenant for violating the roommate law by having too many roommates. But if your lease specifically restricts occupancy of your apartment to the persons described in the roommate law (RPL §235-f), then a violation can lead to an eviction proceeding. It is the violation of the lease, not the statute, that gives the ground for eviction. More and more landlords are inserting this restrictive language in leases.

If your apartment is subject to rent control the landlord has the right to add a 10% surcharge to your rent if you bring in a roommate. However, it would be permissible to pass that cost on to your roommate. This surcharge does not apply to rent-stabilized apartments. (Roughly speaking, apartments occupied by the same tenant, or his/her successors, since before 1971 are subject to rent control; apartments occupied post-1971 are subject to rent stabilization.)

You do not have the right to charge any rent you please

If you are the tenant named on the lease, and your apartment is rent-stabilized, you are prohibited from charging your roommate more than a proportionate share of the rent. A roommate’s proportionate share of the rent is determined by dividing the legal rent by the number of tenants and occupants (excluding spouses and dependent children). Charging a roommate more than a proportionate share of rent is a violation of the Rent Stabilization Code and can lead to eviction.

There is no such proportionate-rent rule for rent-controlled tenants. However, judges have long disapproved of "profiteering" by rent-regulated tenants. Profiteering is generally found when a rent-regulated tenant charges a subtenant an amount of rent that is well in excess of the total, legal rent for the apartment. Although no court has yet evicted a rent-controlled tenant for profiteering on a roommate (as opposed to subtenant), the law is evolving in this area and, if you want to keep your apartment, it is wise to play it safe. So far, in a rent-controlled situation, the tenant is safe from eviction so long as the roommate is not paying an amount that exceeds the total rent for the apartment.

A rent-stabilized tenant who charges a roommate a disproportionate share of the rent is subject not only to eviction by the landlord, but also to an overcharge complaint by the roommate. If the overcharge is willful, the tenant could end up paying the roommate treble damages, or three times the amount of the overcharge.

A rent-controlled tenant who charges a roommate more than the maximum legal rent for the apartment may or may not be subject to eviction. But whether or not the landlord would have a claim for eviction, the overcharged roommate would most likely have a claim for a rent overcharge.

You should have a written agreement with your roommate

Even if your roommate is your best friend, it is best not to leave the terms of your roommate relationship to trust. Even the most open and trusting relationships have been known to fall apart over issues like money and property -- ask any lawyer.

A written agreement avoids arguments down the road about what, precisely, was agreed upon. It can also provide a solution when problems do arise.

You do not need a lawyer to draft an agreement. A written agreement using your own plain language is just as enforceable as (and often preferable to) a lengthy document filled with legal jargon. The only requirement for an agreement to be enforceable is that it contain all of the essential terms. The essential terms of a rental agreement are: (1) the amount of rent being charged and how it is to be paid, (2) the term of the occupancy, and (3) the space being occupied.

It is advisable, however, to include other terms, such as penalties for late payment, restrictions on house guests, how you will share chores, how and when a security deposit will be returned, and any other matter that you think is important.

It is also a good idea to make provision for what happens when one roommate wants to terminate the roommate relationship before the end of the agreed-upon term. If both roommates have signed the lease, then both roommates are responsible to the landlord for the rent, but the reality is that the remaining roommate gets stuck with the debt because the consequence of not paying the rent -- eviction -- befalls only the remaining roommate. In such a situation, what is the obligation of the departing roommate to the remaining roommate?

Also, even if only one of the parties is named on the lease, that party may be relying on her roommate’s share of the rent in order to make ends meet; if the roommate moves out before the end of her term, she leaves the tenant of record in the lurch.

In a recent Small Claims Court case a roommate sued his former roommate, who moved out early, for his share of the rent to the end of the lease term. Both of the roommates were named on the lease. The judge wrestled to find an equitable result and had difficulty in the absence of an agreement and any law clearly on point. After many pages of analysis, he ended up calling the parties in for another hearing.

You can avoid having your roommate dispute turn into major litigation by simply making an agreement about your obligations toward one another in the event the relationship terminates before the end of the agreement. One equitable arrangement would be to allow the departing roommate out of the lease, or the rental agreement, once s/he finds an acceptable roommate to take her/his place. If the remaining roommate rejects the proposed new roommate without good cause, then the departing roommate should be released of any further obligations. This arrangement is similar to a provision in the Real Property Law on assignments of leases.

As long as the subject of your agreement is not illegal or against public policy, you are pretty much free to chart your own course. Just make sure your agreement is clear and unambiguous. A clear and unambiguous agreement is one that is not capable of more than one interpretation. If your agreement is clear and unambiguous, and does not violate law or public policy, a court will enforce it according to its terms.

What to do when you want your roommate to leave

After originally posting this article this writer received countless calls and e-mails from tenants living with the roommate from hell, and was tempted to rename the article "Roommate advice: Don’t do it!"

If you are the tenant of record and your roommate is not, and you would like your roommate to leave, and your roommate has been in the apartment for more than 30 days, and your roommate refuses to leave voluntarily, then, unfortunately, you have only one recourse -- a formal eviction proceeding. This writer does not prosecute (only defends) eviction proceedings. The law does not require that you be represented by a lawyer in Housing Court, and the Court provides assistance to parties without lawyers. However, without a lawyer it may be more difficult to get the results you want. There are many lawyers in the City of New York who make their living prosecuting eviction proceedings.

Lynn Armentrout is a Tenant Attorney practicing in New York City.

www.newyorktenantattorney.com
299 Broadway Suite 1700
New York, New York 10007
Telephone: (212) 732-3093
Fax: (212) 732-3095
Last edited by TenantNet on Sun Jul 16, 2006 5:27 pm, edited 2 times in total.
The Tenant Network(tm) for Residential Tenants
Information from TenantNet is from experienced non-attorney tenant
activists and is not considered legal advice.

Subscribe to our Twitter Feed @TenantNet
TenantNet
 
Posts: 9368
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

Real Prop. Law 235-f. Unlawful restrictions on occupancy

Postby TenantNet » Sun Jul 16, 2006 5:08 pm

The NYS Real Property Law
Section 235-F
AKA The "Roommate Law"


235-f. Unlawful restrictions on occupancy.

1. As used in this section, the terms:

(a) "Tenant" means a person occupying or entitled to occupy a residential rental premises who is either a party to the lease or rental agreement for such premises or is a statutory tenant pursuant to the emergency housing rent control law or the city rent and rehabilitation law or article seven-c of the multiple dwelling law.

(b) "Occupant" means a person, other than a tenant or a member of a tenant's immediate family, occupying a premises with the consent of the tenant or tenants.

2. It shall be unlawful for a landlord to restrict occupancy of residential premises, by express lease terms or otherwise, to a tenant or tenants or to such tenants and immediate family. Any such restriction in a lease or rental agreement entered into or renewed before or after the effective date of this section shall be unenforceable as against public policy.

3. Any lease or rental agreement for residential premises entered into by one tenant shall be construed to permit occupancy by the tenant, immediate family of the tenant, one additional occupant, and dependent children of the occupant provided that the tenant or the tenant's spouse occupies the premises as his primary residence.

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.

5. The tenant shall inform the landlord of the name of any occupant within thirty days following the commencement of occupancy by such person or within thirty days following a request by the landlord.

6. No occupant nor occupant's dependent child shall, without express written permission of the landlord, acquire any right to continued occupancy in the event that the tenant vacates the premises or acquire any other rights of tenancy; provided that nothing in this section shall be construed to reduce or impair any right or remedy otherwise available to any person residing in any housing accommodation on the effective date of this section which accrued prior to such date.

7. Any provision of a lease or rental agreement purporting to waive a provision of this section is null and void.

8. Nothing in this section shall be construed as invalidating or impairing the operation of, or the right of a landlord to restrict occupancy in order to comply with federal, state or local laws, regulations, ordinances or codes.

9. Any person aggrieved by a violation of this section may maintain an action in any court of competent jurisdiction for:

(a) an injunction to enjoin and restrain such unlawful practice;

(b) actual damages sustained as a result of such unlawful practice; and

(c) court costs.
The Tenant Network(tm) for Residential Tenants
Information from TenantNet is from experienced non-attorney tenant
activists and is not considered legal advice.

Subscribe to our Twitter Feed @TenantNet
TenantNet
 
Posts: 9368
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

Postby Anna » Wed Nov 15, 2006 7:05 pm

The amount of rent that prime tenants in rent stabilized units can collect from roommates is limited by the New York State Division of Housing and Community Renewal:

RSC § 2525.7 Occupancy by persons other than tenant of record or tenant's immediate family

(a) Housing accommodations subject to the RSL and this Code may be occupied in accordance with the provisions and subject to the limitations of section 235-f of the Real Property Law.

(b) The rental amount that a tenant may charge a person in occupancy pursuant to section 235-f of the Real Property Law shall not exceed such occupant's proportionate share of the legal regulated rent charged to and paid by the tenant for the subject housing accommodation.

For the purposes of this subdivision, an occupant's proportionate share shall be determined by dividing the legal regulated rent by the total number of tenants named on the lease and the total number of occupants residing in the subject housing accommodation. However, the total number of tenants named on the lease shall not include a tenant's spouse, and the total number of occupants shall not include a tenant's family member or an occupant's dependent child. Regardless of the number of occupants, tenants named on the lease shall remain responsible for payment to the owner of the entire legal regulated rent. The charging of a rental amount to an occupant that exceeds that occupant's proportionate share shall be deemed to constitute a violation of this Code.

http://www.tenant.net/Rent_Laws/rsc/rsc2525.html
Anna
 
Posts: 2538
Joined: Mon Jul 22, 2002 1:01 am
Location: Manhattan

Postby TenantNet » Thu Jan 22, 2009 5:37 pm

Renting with roommates? Protect yourself
Rent it Right

By Janet Portman, Thursday, January 22, 2009.
Inman News - www.inman.com

Q: I recently moved into an apartment with another roommate. We both signed a month-to-month rental agreement. On the second of January, I came home and found she had moved out, had not paid her portion of the rent, and had left her room totally trashed and painted weird colors.

I've paid the full rent for January and I have found a replacement roommate who starts March 1. My question is: What can I sue my ex-roommate for? I spent a ton of time and some money repainting and repairing the bedroom. --Bethany L.

A: Your and your ex-roommate were co-tenants, which means that the landlord could demand the full rent from either of you. How the two of you divide the rent is up to you, and careful co-tenants write down this understanding, along with other key issues involved in living together (Who pays the utilities? How long may guests stay?), in a roommate agreement, signed by both. An agreement should also address what the roommates will do if one wants or needs to leave -- some roommates require that they give each other plenty of notice, so that the remaining resident has lots of time to find a sub.

I'll bet you had no written agreement, and simply agreed to split the rent. You probably also didn't discuss how you'd handle someone's wish to leave. Now, while landlords are legally entitled to proper notice before a tenant can terminate a month-to-month rental agreement (30 days in most states), no such law governs leave-takings between co-tenants. Although it might be fair to expect a roommate to give other occupants sufficient notice (say, at least as much notice as the roommate should give the landlord), and to make her pay her share when she fails to do so, a judge might not order it.

You time and materials spent repairing and painting the roommate's bedroom are another matter, however. You would have had to take these steps at the end of your tenancy, in order to avoid a deduction from your security deposit. And presumably, your ex contributed to that deposit. When you leave, and the landlord returns the deposit to you (it will be intact if you've left without owing rent and have left the place clean and undamaged, except for normal wear and tear), you could write a letter to the ex, explaining that you're refunding her share of the deposit minus the expenses you incurred to clean up after her.

Protect yourself when you rent to the next roommate. Require her to pay you her full share of the deposit. If she isn't responsible for any deductions, she'll get it back; meanwhile, the original tenant's deposit share will be returned to you, which you can handle as explained above.
TenantNet
 
Posts: 9368
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

CAPITAL HOLDING COMPANY v. STAVROLAKES

Postby TenantNet » Thu Jun 11, 2009 10:08 pm

CAPITAL HOLDING COMPANY v. STAVROLAKES, 242 A.D.2d 240 [1st Dept 1997]
662 N.Y.S.2d 14
CAPITAL HOLDING COMPANY, Respondent, v. RENA STAVROLAKES, Appellant, et al.,
Respondents.
Appellate Division of the Supreme Court of the State of New York
First Department
August 21, 1997

Appeal from the Appellate Term of the Supreme Court, First Department.

Petitioner Capital Holding Company ("petitioner") is the owner of a residential apartment building at 220 West 93rd Street, in Manhattan. Respondent Stavrolakes ("Stavrolakes" or "tenant") is the tenant of apartment 15-A, having lived there for 13 years. It is undisputed that the apartment is subject to the rent control laws, that there is no written lease between the parties and that Stavrolakes has two roommates who are not tenants, and are not related to her. On October 26, 1995, petitioner served a 10-day Notice to Cure on Stavrolakes alleging a breach of a substantial obligation of her statutory tenancy, to wit, having more than one occupant of her apartment who is not a family member or co-tenant in violation of Real Property Law § 235-f (3) (also known as the "Roommate Law"). The Notice demanded that the tenant cure the violation by November 11, 1995, or her tenancy would be terminated. The tenant failed to cure and petitioner served a Notice of Termination.

Petitioner commenced a holdover proceeding on January 2, 1996, and the tenant answered. Simultaneously, the tenant moved for summary judgment dismissing the petition on the ground that her two roommates were not subject to rent control under New York City Rent and Eviction Regulations (9 NYCRR) § 2200.2 (f) (5). Petitioner cross-moved for summary judgment on the grounds that the tenant did not dispute that two unrelated persons were living with her in the apartment in violation of Real Property Law § 235-f (3), and that the Rent and Eviction Regulation cited by respondent was inapplicable. The Civil Court, relying on Schneller v. Moed (128 Misc.2d 885 [Civ Ct, N.Y. County 1985]), held that because "the intent of the statute was to benefit and protect tenants... the statute should not be utilized in a summary proceeding as grounds for eviction."

The Appellate Term reversed, by a 2 to 1 vote, and granted petitioner's cross motion for summary judgment. Relying on its previous decision in 425 Realty Co. v. Herrera (146 Misc.2d 790 [App Term, 1st Dept 1990]), the court stated that while Real Property Law § 235-f Real Prop. "prohibits landlords from restricting occupancy solely to family members, it does not afford eviction protection to tenants where the total number of occupants exceeds the statutory [limit]." The Appellate Term specifically upheld a landlord's right to bring a summary proceeding where a tenant violates the "enforceable occupancy limitations" in Real Property Law § 235-f Real Prop.. However, the dissent argued that the remedial purpose of the statute would not be served by permitting a summary proceeding to evict a tenant merely for having more than one unrelated occupant in the apartment.

We reverse. The legislative history of Real Property Law § 235-f reveals that its enactment was a response to "recent judicial decisions refusing to extend the protection of the human rights law to unrelated persons sharing a dwelling" (L 1983, ch 403, § 1; see, Hudson View Props. v. Weiss, 59 N.Y.2d 733). The Legislature also found that"unless corrective action is taken... thousands of households throughout this state composed of unrelated persons who live together for reasons of economy, safety and companionship may be placed in jeopardy" (L 1983, ch 403, § 1). The statute's general prohibition, in subdivision (2), makes it "unlawful for a landlord to restrict occupancy of residential premises, by express lease terms or otherwise, to a tenant or tenants or to such tenants and immediate family." Based on the above-mentioned legislative findings, the thrust of the general prohibition, and the title of the section: "Unlawful restrictions on occupancy," it is undeniable that this section was passed to protect tenants and occupants, not landlords.

Petitioner's holdover proceeding is premised on subdivision (3) of Real Property Law § 235-f : "Any lease or rental agreement for residential premises entered into by one tenant shall be construed to permit occupancy by the tenant, immediate family of the tenant, one additional occupant, and dependent children of the occupant provided that the tenant or the tenant's spouse occupies the premises as his primary residence."

Prior interpretations of the statute have varied. Some courts have held that subdivisions (3) and (4)[fn*] set occupancy limitations for residential premises, which, if violated, are enforceable by a landlord in a proceeding brought under this section (see, 425 Realty Co. v. Herrera, supra). Others, however, have focused on the legislative purpose to protect tenants and unrelated occupants, and concluded that landlords may not affirmatively use the statute's occupancy limits as a basis for summary eviction proceedings (see, Mitchell Gardens No. 1 Coop. Corp. v. Cataldo, 169 Misc.2d 983 [Civ Ct, Queens County 1996]; Schneller v. Moed, supra). Neither the Court of Appeals nor any of the Appellate Divisions have directly addressed this issue.

We do not read subdivision (3) as creating an affirmative right of action for landlords to enforce occupancy limitations. In our view, such an interpretation would be totally at odds with the balance of the statute. Indeed, the language of subdivision (3) is itself permissive (the lease "shall be construed to permit occupancy... [of] one additional occupant"), rather than restrictive, and there is no express statement that a tenant may have only one unrelated roommate.

Additionally, subdivision (9) of the statute, listing remedies available for violations of the section, shows that no right of action was intended to vest in landlords (see, Podsiadlo v Pacheco, NYLJ, Mar. 26, 1997, at 31, col 1 [Civ Ct, Kings County]). Subdivision (9) permits "[a]ny person aggrieved by a violation of this section" to maintain an action for "an injunction to enjoin and restrain such unlawful practice"; for "actual damages sustained as a result of such unlawful practice"; and for court costs. It is undisputed that the only "unlawful practice" referred to in the entire statute is the one prohibiting landlords from restricting occupancy of residential premises to tenants and their immediate families (Real Property Law § 235-f [2]). The remedies provided pertain only to statutory violations by landlords. This is persuasive evidence that landlords were not intended to be "aggrieved" persons under section 235-f (9).

Moreover, when subdivision (3) is viewed in the context of the section's other provisions, it is clear that the section was not intended to restrict tenants' rights. The second clause of subdivision (6) states that "nothing in this section shall be construed to reduce or impair any right or remedy otherwise available to any person residing in any housing accommodation on the effective date of this section which accrued prior to such date." This language confirms the absence of any legislative intent to restrict the existing rights of tenants and occupants. Petitioner distorts the legislative purpose of section 235-f, and the judicial decision that precipitated it (Hudson View Props. v Weiss, supra), by arguing that the statute expanded occupancy rights that previously did not exist. It incorrectly asserts that prior to the enactment of section 235-f, only family members could be legal occupants of a statutory tenant. This is simply not the case, as in the absence of a contrary lease provision, their was no statutory limit on the number of occupants permitted. Section 235-f did not expand tenants' occupancy rights; it merely limited a landlord's ability to restrict them. Contrary to petitioner's argument, our holding will not restrict landlords from setting reasonable occupancy limitations in leases, or prevent them from enforcing such lease provisions, so long as they do not violate the minimum protections afforded tenants and occupants under section 235-f.

As stated in Schneller v. Moed (supra, at 887), "where a lease allows more than one additional roommate, the purpose of section 235-f would be undermined, indeed perverted were courts to permit landlords to use the statute as a sword against the very group it was designed to shield."

Concur: Ellerin, J.P., Wallach, Nardelli, Rubin and Mazzarelli, JJ.

[fn*] Subdivision (4) provides that leases entered into by two or more tenants shall be construed to permit occupancy by tenants, the immediate family of tenants, occupants and dependent children of occupants, provided that the total number of tenants and occupants, excluding the occupants' dependent children, does not exceed the total number of tenants on the lease.
TenantNet
 
Posts: 9368
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

Postby TenantNet » Thu Jun 11, 2009 10:11 pm

Landlord-Tenant Case Before Appeals Court
Issue Is Intended Scope of 'Roommate' Law

New York Law Journal November 16, 1998
BY GARY SPENCER


ALBANY -- An important landlord-tenant case awaits the Court of Appeals this week, when it will be asked to finally decide whether the "Roommate Law" was enacted solely to protect tenants or whether it gives landlords enforceable rights to limit apartment occupancy as well.

Lower courts have issued conflicting rulings since the statute was enacted 15 years ago, but the Appellate Term has often allowed landlords to use it as the basis for evicting tenants who share their apartments with more than one unrelated person. In the first Appellate Division ruling on the issue, the First Department held it provides no right of action for landlords.

Among other cases scheduled for the one-week November session, the Court of Appeals will review the disqualification of a Manhattan firm, Mendes & Mount, as plaintiff's counsel in a complex insurance dispute. And in a case arising from a legal malpractice action against Hughes Hubbard & Reed, the Court will decide whether New York's "saving statute" can be invoked to revive an otherwise untimely malpractice claim that was dismissed in Texas for lack of personal jurisdiction. The session begins tomorrow.

Eviction Sought

The landlord-tenant issue in Capital Holding Co. v. Stavrolakes, No. 189, arose in 1996 when the owner of a Manhattan apartment building brought a summary eviction proceeding against Rena Stavrolakes, who was sharing her rent-controlled apartment with two people who were not tenants and were not related to her.

The sole basis for the holdover proceeding was the "Roommate Law," Real Property Law §235-f(3), which provides that residential rental agreements "shall be construed to permit occupancy by the tenant, immediate family of the tenant, one additional occupant and dependent children of the occupant...." Ms. Stavrolakes had no written lease, but the landlord maintained the "plain language" of the law limited her to one unrelated roommate.

Civil Court Judge Shirley Kornreich, citing trial court precedent, found the statute could not be used as a ground for eviction and dismissed the proceeding. The First Department, Appellate Term cited its own precedents and reversed, saying that while the law "prohibits landlords from restricting occupancy solely to family members," it also imposes an "enforceable occupancy limitation" on tenants.

Tenant Protection

The Appellate Division unanimously dismissed the eviction proceeding, finding that the Roommate Law was meant only to protect tenants and placed no limits on occupancy. The law was enacted in 1983 in direct response to court decisions upholding lease provisions that limited occupancy to a tenant's immediate family, decisions that tenant advocates had warned could be used to bar unmarried couples from living together in rented apartments.

Holding that the law gives landlords no right of action, the Appellate Division said "the purposes of §235-f would be undermined, indeed perverted, were courts to permit landlords to use the statute as a sword against the very group it was designed to shield."

Attorney Testimony

In Jamaica Public Service Co. v. AIU Insurance Co., No. 190, the plaintiff is appealing the disqualification of Mendes & Mount as its counsel in actions to recover $15.4 million from its insurers and insurance brokers. Lower courts found the firm had used confidential information, obtained by an associate who previously worked for one of the defendants, against the defendants.

Several of the companies sued by Jamaica Public Service (JPS) are subsidiaries of American International Group (AIG). It initially sued AIU Insurance Co., apparently based on information from brokers that "AIU" was one of its insurers. But AIU is the common name for American International Underwriters, a separate AIG subsidiary. JPS was actually insured by a third AIG subsidiary, La Interamericana Compania of Colombia.

When AIU Insurance moved to dismiss the complaint against it, JPS moved to amend its complaint to add La Interamericana and American International Underwriters as defendants and to have the prior service of its complaint on AIU Insurance deemed to be service on them.

In support of the JPS motion, Mendes & Mount submitted the affirmation of an associate, Peter Samaan, who had previously worked for another AIG subsidiary and who discussed the "confusing" corporate structure of AIG.

Supreme Court granted a motion by AIU Insurance to disqualify Mendes & Mount, finding that Mr. Samaan's statements regarding the structure of AIG were "either confidential information or information acquired by [Mr. Samaan] in his capacity as AIG's former attorney." The court also dismissed the complaint against AIU Insurance.

The Appellate Division, First Department affirmed. It also held that the dismissal of the complaint against AIU Insurance, the only party to move for disqualification, did not render the disqualification moot. JPS is challenging the decision on mootness.

And on the merits, JPS insists the lower courts made a "fundamental error" when they found that Mr. Samaan's prior work for the American Home Assurance Co., an AIG subsidiary that is not a defendant in the suit, created an attorney-client relationship with other AIG subsidiaries that are defendants.

"If accepted as law," JPS argues, "every attorney who at one time rendered legal services to a single subsidiary of a large conglomerate would be disqualified from representing a client in a case against any of the conglomerate's remaining companies."

It also maintains that information about corporate structure is not confidential and may be used without violating Disciplinary Rule 5-108, which protects the confidences of former clients.

Legal Malpractice

In Lehman Brothers Inc. v. Hughes Hubbard & Reed, No. 191, the plaintiff is hoping to revive its legal malpractice action against the law firm that represented it in a securities offering in Texas.

Lehman claims Hughes Hubbard & Reed gave it incorrect information about Texas registration requirements, which resulted in state regulators ordering it to rescind the sale of $5.4 million in securities to Texas investors. Lehman initially sued the law firm in Texas, where state courts found the law firm had insufficient contacts with Texas to subject it to personal jurisdiction in Texas.

When the Texas action was dismissed, Lehman filed a new action against the law firm in New York. Although the New York statute of limitations had expired, Lehman argued New York's "saving statute," CPLR section 205(a), gave it six months from the termination of its prior action to commence a new one.

Supreme Court dismissed the suit and the First Department affirmed, holding that the tolling provisions of §205(a) apply only when the prior action was filed in New York.
TenantNet
 
Posts: 9368
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

ROXBOROUGH APTS. CORP. v. BECKER

Postby TenantNet » Thu Jun 11, 2009 10:13 pm

September 15, 1999

ROXBOROUGH APTS. CORP. v. BECKER

New York Law Journal
September 15, 1999

CIVIL COURT


Part Y

Judge Billings

ROXBOROUGH APTS. CORP. v. BECKER QDS:26701535—In Capital Holding Co. v. Stavrolakes, 242 A.D.2d 240 (1st Dep't 1997), aff'd, 92 N.Y.2d 1007 (1998), the court examined the extent to which N.Y. Real Prop. Law (R.P.L.) §235-f limits roommates in residential tenancies. In this case, the court determines the extent to which a residential lease may limit roommates, consistent with the statute, and construes the limitation on roommates imposed by a standard lease provision that refers to the statute.

While R.P.L. §235-f allows a lease to limit roommates to one, the statute does not contain any prohibition or presumption against more than one. Therefore the standard lease provision at issue, which limits the number of roommates "in accordance with" R.P.L. §235-f, permits more than one roommate.

I. Background

Petitioner landlord commenced this holdover proceeding to recover possession of Apartment 3A at 251 West 91st Street, New York County, following respondent's admission, in a prior nonpayment proceeding, that he shared the premises with three roommates. Petitioner alleges that these roommates violate a provision of the parties' lease, which states at ¶1:
You shall use the Apartment for living purposes only. The Apartment may be occupied 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.

Aff. of William E. Leavitt, Ex. D. See also id., Ex. A ¶5. Respondent moves to dismiss the petition based on (1) a defective notice to cure, (2) failure to state a cause of action, and (3) waiver of the lease provision. As discussed below, the court grants the motion based on the petition's failure to state a cause of action.

II. The Notice of Cure

The purpose of a notice to cure is to apprise the tenant of "the facts upon which the action is predicated," to enable him "to properly raise issues and sufficiently defend the accusations," Cosmopolitan Broadcasting Corp. v. Miranda, 143 Misc. 2d 1, 2-3 (Civ. Ct. N.Y. Co. 1989) (citing Giannini v. Stuart, 6 A.D.2d 418 (1st Dep't 1958)), or "prepare to move out of the subject premises." Steinmetz v. Barnett, 155 Misc. 2d 98, 101 (Civ. Ct. N.Y. Co. 1992). See Ellivkroy Realty Corp. v. HDP 86 Sponsor Corp., 162 A.D.2d 238 (1st Dep't 1990). The notice to cure in this case satisfies this standard.

The notice claims that respondent violated ¶1 of the lease, limiting use and occupancy to the tenant and his immediate family and to "occupants" as defined in R.P.L. §235-f. The notice further states that the violation is based on respondent's alleged admission that he lives with three roommates named Tom Debose, Fransesca Contreras, and Jennifer Holly.

Together these statements can only mean either that the three roommates are not "occupants" as defined in R.P.L. §235-f or, if they are, that the total occupants exceed the number allowed by the lease. The nature of the violation and the facts on which the violation is based are explicitly set forth. See SAAB Enters. v. Bell, 198 A.D.2d 342, 343 (2d Dep't 1993).

III. The Claim Under The Lease and R.P.L. §235-f

Respondent moves to dismiss the petition for failure to state a cause of action, C.P.L.R. §3211(a)(7), on the ground that the facts alleged do not establish a lease violation as a matter of law. In assessing this claim, the court must "determine whether, 'accepting as true the factual averments of the complaint, plaintiff can succeed upon any reasonable view of the facts stated.' ", Campaign for Fiscal Equity v. State of New York, 86 N.Y.2d 307, 318 (1995) (citation omitted).

Petitioner contends that the alleged violation is not of R.P.L. §235-f itself, but of a lease provision tracking the language of the statute. Nevertheless, if the statute protects the conduct alleged, then it does not constitute a breach of the lease, because the lease cannot prohibit conduct protected by the statute. "Any provision of a lease or rental agreement purporting to waive a provision of this section is null and void." R.P.L. §235-f(7). Especially since the lease provision explicitly invokes the §235-f definition of "occupant," whether a violation occurred depends on the statute's interpretation and application. Therefore petitioner states a cause of action only if the named roommates are not "occupants" as defined by R.P.L. §235-f or if their number exceeds the occupancy limitations of the lease.

Section 235-f(1)(b) defines an "occupant" as "a person, other than a tenant or a member of a tenant's immediate family, occupying a premises with the consent of the tenant or tenants." Respondent does not dispute that his three roommates are neither tenants nor members of his immediate family, nor that they occupy the premises with the tenant and with his consent. Section 235-f(1), on its face, imposes no limit on the number of occupants so long as they are unrelated persons living with the tenant and with his consent. Construed in accordance with §235-f(1), then, the lease permits the occupancy alleged as the basis of this proceeding.

Even if the lease provision must be construed in accordance with all the subsections of R.P.L. §235-f, not just the definition of "occupant" in §235-f(1), the result is the same.

Section 235-f(3) provides:
Any lease or rental agreement for residential premises entered into by one tenant shall be construed to permit occupancy by the tenant, immediate family of the tenant, one additional occupant, and dependent children of the occupant provided that the tenant or the tenant's spouse occupies the premises as his primary residence.

If the landlord intended the lease to limit the number of occupants to one, that construction is not "in and only in accordance with" this or any other provision of the statute.

In light of the legislation's permissive language and remedial purpose "to protect tenants and occupants, not landlords," the statute did not create "an affirmative right of action for landlords to enforce occupancy limitations." Capital Holding Co. v. Stavrolakes, 242 A.D.2d at 242-43. Accord Schneller v. Moed, 128 Misc. 2d 885, 887 (Civ. Ct. N.Y. Co. 1985). See R.P.L. §235-f(2), (6), and (9); Costa v. David Frankel Realty Inc., N.Y.L.J., Oct. 23, 1996, at 33 (Sup. Ct. N.Y. Co.); Barbizon Owners Corp. v. Chudick, 159 Misc. 2d 1023, 1027 (Civ. Ct. Queens Co. 1994). The provision concerning the number of occupants is not a prohibition against a tenant having more than one unrelated roommate. R.P.L. §235-f(3). Nor does the statute elsewhere contain any limit or presumption as to the number of occupants. Capital Holding Co. v. Stavrolakes, 242 A.D.2d at 243. See also Barbizon Owners v. Chudick, 159 Misc. 2d at 1027. It "merely limited a landlord's ability to restrict them." Capital Holding Co. v. Stavrolakes, 242 A.D.2d at 244. Accord Vidod Realty Co. v. Calvin, 147 Misc. 2d 488, 490 (Civ. Ct. Bronx Co. 1989).

Although R.P.L. §235-f did not create any statutory limitation on occupancy, the statute did not render unenforceable lease provisions establishing "reasonable occupancy limitations" consistent with the protections afforded by the statute. Capital Holding Co. v. Stavrolakes, 242 A.D.2d at 244. Thus, if the lease expressly limited the number of "occupants" as defined by R.P.L. §235-f(1)(b) to one, such a clause ought to be enforceable under §235-f(3) if the occupancy limitation is otherwise "reasonable." Capital Holding Co. v. Stavrolakes, 242 A.D.2d at 244. See 430 Realty Co. v. Baird, N.Y.L.J., May 14, 1997, at 29 (Civ. Ct. N.Y. Co.).

Here, however, the lease does not contain any such express limit. While limiting the occupants to one may be permissible consistent with R.P.L. §235-f, a greater number is equally "in accordance with" the entire statute. See 61 Jane Street Assoc. v. Kroll, 102 A.D.2d 751, 753 (1st Dep't 1984). Particularly since the lease in this case provides for "occupants," not "an occupant" or "one occupant," the provision must be interpreted to permit more than one occupant.

IV. Conclusion

Accepting petitioner's allegations as true, no reasonable view of those facts states a cause of action under the lease interpreted according to the applicable statutory provisions. Therefore the court grants respondent's motion to dismiss on this ground. In light of this determination, the court need not address respondent's remaining grounds for dismissal.

This decision constitutes the court's order. The court has mailed copies to the parties' counsel.
TenantNet
 
Posts: 9368
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

220 W. 93rd St., LLC v Stavrolakes

Postby TenantNet » Thu Jun 11, 2009 10:17 pm

220 W. 93rd St., LLC v Stavrolakes
2006 NY Slip Op 07608 [33 AD3d 491]
October 24, 2006
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, December 13, 2006


220 West 93rd St., LLC, Respondent,
v
Rena Stavrolakes, Appellant.

—[*1]

Judgment, Supreme Court, New York County (Jane Solomon, J.), entered April 7, 2006, after a nonjury trial, declaring that defendant violated her obligations as a rent-controlled tenant and terminating her tenancy, unanimously affirmed, with costs.

The judgment was supported by a fair interpretation of the evidence and should not be disturbed (Saperstein v Lewenberg, 11 AD3d 289 [2004]). Sufficient evidence, in the form of testimony and numerous exhibits, was presented for the court to find that the occupancy of this three-bedroom apartment (with dining room converted to a fourth bedroom) by numerous persons between 2001 and 2005—especially short-term transient students at illegal rents—was in the nature of subletting rather than taking in roommates, and constituted profiteering and commercialization of the premises, an incurable violation of the rent control laws (see BLF Realty Holding Corp. v Kasher, 299 AD2d 87 [2002], lv dismissed 100 NY2d 535 [2003]).

We have considered defendant's remaining arguments and find them without merit. Concur—Buckley, P.J., Tom, Saxe, Sullivan and McGuire, JJ.
TenantNet
 
Posts: 9368
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

425 REALTY CO v. Herrera

Postby TenantNet » Thu Jun 11, 2009 10:32 pm

Supreme Court, Appellate Term, New York,
First Department.

425 REALTY CO., Petitioner-Landlord-Appellant,

v.

Norma HERRERA and Linda Herrera, Respondents-
Tenants-Respondents,

Renee Stein, Dick Herrera, “John Doe” and “Jane
Doe”, Respondents-Undertenants.

June 7, 1990.

In a holdover summary proceeding, the Civil Court, New York County, Gould, H.J., granted the tenant's motion to dismiss, and the landlord appealed. The Supreme Court, Appellate Term, held that statutory subsection governing number of occupants allowed under leases entered into by multiple tenants was unambiguous and enforceable, notwithstanding fact that larger number of occupants was permitted under subsection applicable to leases entered into by one tenant.

Reversed.

West Headnotes
Landlord and Tenant 233 278.9(2)
233 Landlord and Tenant
233IX Re-Entry and Recovery of Possession by
Landlord
233k278.1 Suspension of Remedies
233k278.9 Violation of Tenancy
233k278.9(2) k. Illegal or Unauthorized
Use or Occupancy. Most Cited Cases

Statutory subsection governing number of occupants allowed under leases entered into by multiple tenants was unambiguous and enforceable, notwithstanding fact that larger number of occupants was permitted under subsection applicable to leases entered into by one tenant. McKinney's Real Property Law § 235-f, subds. 3, 4.

**442 *790 Finkelstein, Borah, Schwartz, Altschuler & Goldstein, P.C. (Jeffrey R. Metz, New York City, of counsel), for appellant.

Before OSTRAU, P.J., and SANDIFER and Mc- COOE, JJ.

*791 PER CURIAM:

Order entered January 20, 1990 (Gould, H.J.) reversed, with $10 costs, tenants' motion to dismiss denied.

In this holdover summary proceeding, landlord seeks to recover the subject rent-stabilized twobedroom apartment on the ground that there “are more roommates and/or occupants in the subject apartment than allowed pursuant to Section 235-f of the Real Property Law.” Tenants answered, asserting RPL § 235-f protection, and moved to dismiss the petition. By affidavit in support, tenant Norma Herrera states that she and her sister Linda Herrera, the named tenants on the lease, occupy the apartment with their brother Richard Herrera and “off and on, [their] brother's girlfriend, Renee Stein.” By affidavit in opposition, landlord's superintendent states that **443 Renee Stein occupies the apartment and receives mail there. In granting tenants' motion to dismiss the petition, Civil Court posited that had the lease been in the name of only one of the sisters, there would be no violation of RPL § 235-f since subdivision 3 of the statute, applicable to leases entered into by one tenant, permits the occupancy of members of the tenant's immediate family, here her brother and sister, and one additional occupant FN1. However, Civil Court continued, a literal reading of subdivision 4,FN2 applicable to leases entered into by multiple tenants as here, limits “the total number of tenants and occupants” to “the number of tenants specified in the current lease”, thereby prohibiting the occupancy by Renee Stein so long as one of the named tenants remains in occupancy. Finding the result to be “anomalous” and “ironic”, the court *792 declined to enforce the strict language of the statute and dismissed the petition.

FN1. RPL § 235-f(3) provides:

Any lease or rental agreement for residential
premises entered into by one tenant
shall be construed to permit occupancy
by the tenant, immediate family of
the tenant, one additional occupant, and
dependent children of the occupant
provided that the tenant or the tenant's
spouse occupies the premises as his
primary residence.

FN2. RPL § 235-f(4) provides:

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.

We reverse. “Where words of a statute are free from ambiguity and express plainly, clearly and distinctly the legislative intent, resort may not be had to other means of interpretation” (1 McKinney's Cons.Law, Statutes § 76). Such is the situation as pertains to RPL § 235-f(4) and we see no compelling reason to disregard this canon of statutory construction. RPL § 235-f (the “Roommate Law”) was a legislative response to “recent judicial decisions refusing to extend the protection of the human rights law to unrelated persons sharing a dwelling unit” (L.1983, ch. 403, Section 1; see, Hudson View Properties v. Weiss, 59 N.Y.2d 733, 463 N.Y.S.2d 428, 450 N.E.2d 234) and the Legislature, in enacting RPL § 235-f, explicitly stated its concern for the “thousands of households ... composed of unrelated persons who live together for reasons of economy, safety and companionship” (L.1983, ch. 403, Section 1). The provisions of the statute are two-tiered. As regards a single tenant, subdivision 3 permits the tenant (and his immediate family) to take in “one additional occupant.” As regards multiple tenants, subdivision 4 permits not an additional occupant (compare subd. 3 with subd. 4); rather, the provision permits occupancy by the tenants (and their immediate family members) and occupants so long as the total number of tenants and occupants (exclusive of family members) does not exceed the number of tenants specified in the lease. Thus, as regards multiple tenants, and perhaps in recognition of the lessened hardship of “economy, safety and companionship” faced by multiple tenants, the Legislature chose to extend the right to permit an additional occupant only where one of the named tenants was not in occupancy, i.e., as a replacement. Whether or not the course taken by the Legislature was prudent is irrelevant from a statutory construction standpoint. The language of the statute is plain and unambiguous and, in the face of such plain language, we decline to presume that the Legislature, acting in direct and earnest response to judicial decisions, failed to do what it intended. As the plain language of RPL § 235-f must be enforced as written, we deny tenants' motion to dismiss at this pleading stage.

The issue whether respondent Stein is in fact an additional occupant should be developed at a trial.

N.Y.Sup.,1990.
425 Realty Co. v. Herrera
146 Misc.2d 790, 559 N.Y.S.2d 442
TenantNet
 
Posts: 9368
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

Re: Roommate Advice and the Roommate Law RPL 235-f

Postby TenantNet » Fri Jan 31, 2020 10:56 am

https://www.nytimes.com/2010/03/29/nyre ... mates.html
In New York, Breaking a Law on Roommates
By Cara Buckley
March 28, 2010

Doua Moua, 23, played a menacing gangster in a Clint Eastwood movie, but Mr. Moua swears he really is a nice, gentle and rules-abiding fellow. At least he was until he moved to New York City and unwittingly slipped into a world of lawlessness.

Mr. Moua lives with five roommates. And in New York, home to some of the nation’s highest rents and more than eight million people, many of them single, it is illegal for more than three unrelated people to live in an apartment or a house.

The law, for decades part of the city’s Housing Maintenance Code, is little known, widely broken and infrequently enforced. Three citations have been issued since July, according to the Department of Housing Preservation and Development.

When the law is enforced, it is usually because of a complaint from a neighbor or because inspectors spotted a violation while responding to a maintenance problem. The violation is rarely written up unless it is accompanied by a host of others. Rarer still are the tenants who call up the city to turn in their landlord.

The lax enforcement might not be a bad thing, since a sizable number of the city’s denizens, especially its penny-pinched younger residents, have found living with more than two others a financial necessity. According to the Census Bureau’s 2008 American Community Survey, nearly 15,000 dwellings in the city housed three or more roommates who were unrelated to the head of the household. Experts say that number is almost certainly underreported.

“To pack unrelated people in an apartment? I don’t think it’s wrong,” said Mr. Moua, who moved to the city from Minnesota in 2005. “It’s part of New York City culture.”

Mr. Moua, who played Spider, a bandana-clad villain in “Gran Torino,” never thought twice about moving into the immaculately renovated four-bedroom apartment in Hamilton Heights that half a dozen people call home. The place is lined with track lighting and has two bathrooms. His room costs $850 a month.

At first, four people lived in the apartment, but then a roommate’s girlfriend moved in, along with a friend of Mr. Moua’s, who sleeps on a couch in his room.

One of the roommates, David Everett, who is 21 and pays $750 a month, said the law made no sense. “Everything is overpriced,” Mr. Everett said. “To find an apartment that is good housing with few roommates is not going to happen.”

Other cities have similar laws, often spottily enforced. In New Orleans, it is illegal for more than four unrelated adults to live together, though the city’s safety and permits director said that only about five violations were issued a year. In Boston, a 2008 law passed in response to complaints about overcrowding and garbage says that no more than four college undergraduates may live together. Amherst, Mass., which has a sizable college population, also draws the line at four people.

In New York, student dormitories and group homes are exempt from the law. But illegal arrangements can be found across the five boroughs, and they cross lines of age, class, race and dress. They include young actors and ponytailed post-graduates; rising and falling junior investment bankers; immigrants, legal and illegal; and trend-obsessed residents in Brooklyn neighborhoods.

This is a city, after all, where people are willing to do just about anything to pay cheap rent. Among recent Craigslist offerings: a windowless cubby in Williamsburg, alternately described as a “torture chamber” and a “unique dungeon,” for $525, and half of an East Village bunk bed, for $550.

Jordan Dann and her three roommates live in an airy six-bedroom town house — two bedrooms are empty — in Cobble Hill, Brooklyn.

Ms. Dann, who is 33 and works in the theater arts, shares the house with Michelle McGowan, 32, a high school history teacher; Anya Kogan, 27, a Web designer; and Nick Turner, 29, who works in Web sales and marketing.

All four said they could not have afforded the neighborhood or similarly appointed rooms if they had fewer roommates. The house borders a park and has hardwood floors and deep-set windows. Each room rents for $1,200. The roommates say they are respectful and do not let anything molder too long in the fridge.

And, to Mr. Turner’s endless gratitude, the house has three bathrooms. “I’d go crazy otherwise,” he said.

None of the roommates had heard of the law, but learning about it elicited little angst.

“You’re not going to be the one getting in trouble,” Mr. Turner said. “The landlord is.”

He was right. But enforcement is complicated, housing officials said, by the difficulty of finding violators. Inspectors cannot go door to door searching for violations in a city of more than three million households. The law does not specify a penalty, but a landlord who is cited usually must evict the extra tenants.

Eric Bederman, a spokesman for the housing department, said the code was devised for residents’ safety. People with multiple roommates might put locks on their doors or erect barriers, he said, making rescue or escape attempts during emergencies hazardous, even deadly.

But Jerilyn Perine, a former city housing commissioner, said the roommates rule came about to address another concern. It dates to the 1950s, she said, when the city balked at the number of sketchy single-room-occupancy buildings and their often equally sketchy inhabitants, and wanted boarding house brownstones to be converted back to family homes.

Ms. Perine, the executive director of the nonprofit Citizens Housing and Planning Council, said the law, which can be amended only by the City Council, should be changed. It puts people living in such accommodations at risk, she said, by driving this type of occupancy underground. Often, not every roommate is on the lease. Fire regulations might be ignored.

Ms. Perine said occupancy laws should be determined not by whether people were related, but by whether a unit was safely inhabited, whether by four people or more.

Sarah Watson, a policy analyst who works with Ms. Perine, said the law had another unintended effect. It put a crimp on innovative construction that might otherwise house larger numbers of single adults, she said.

Mr. Moua’s landlord, who did not want his name published for fear of a crackdown, said he wrestled with converting some of his apartments into four-bedroom units. He knew it was illegal to allow four unrelated people to live together, but decided that if tenants were willing to live in what was once a dining room, it was fine with him. He could collect slightly more in rent over all and charge less for each room.

“If it’s done in a good way, and there’s not unlimited cramming in, and the shared facilities are adequate,” the landlord said, “then it actually helps solve the affordable housing problem, which I think is a good thing.”
The Tenant Network(tm) for Residential Tenants
Information from TenantNet is from experienced non-attorney tenant
activists and is not considered legal advice.

Subscribe to our Twitter Feed @TenantNet
TenantNet
 
Posts: 9368
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City


Return to Tenant Reference materials

Who is online

Users browsing this forum: No registered users and 1 guest