Our clients frequently ask questions concerning what occupants are allowed in a cooperative or condominium apartment. The answer is very situation-specific and depends on four sets of rules: (i) the governing documents of the building – principally the by-laws for a condominium and the proprietary lease for a cooperative, (ii) New York state’s “Roommate Law”, (iii) state and city laws involving short-term occupancies, and (iv) federal, state and city anti-discrimination laws.

Cooperatives’ proprietary leases usually limit occupancy to the lessee and the lessee’s “immediate family” and domestic employees unless board permission is granted for other occupants. In both cooperatives and condominiums, subletting may be regulated – almost always requiring permission from the board in the case of cooperatives and often subject to a right of first refusal on the part of the condominium board. The cooperative’s proprietary lease or the condominium by-laws must be reviewed for the specific limitations in any particular building.  Building policies may implement the subletting controls provided in a proprietary lease or by-laws, but may not supersede or exceed them.

The Roommate Law supersedes building governing documents and policies. All residential tenants – including proprietary lessees or approved sub-lessees and condominium unit tenants – are entitled to have a “roommate”. The rights provided by the law are somewhat complicated, but it generally allows only one roommate per tenant, does not apply if more than one tenant named in the lease is in occupancy, requires the single tenant to be in concurrent occupancy with the roommate, and requires notice to the owner as to the identity of the roommate. The dependent children of a permitted roommate are also permitted to occupy the apartment.

The federal, state and city anti-discrimination laws also supersede building governing documents and policies. In the consideration of apartment occupancy issues, two aspects of these laws are generally relevant. First, if a condominium unit owner or a tenant of a condominium or cooperative apartment has a live-in “partner”, that relationship must be recognized as a “family” in terms of occupancy rights. Second, characteristics of race, gender, marital status, sexual orientation, disability, religion, ethnicity, and age may not play a part in decisions related to apartment occupancy. Building policies must be neutral in both intent and effect.

Finally, a word about short-term occupants. Occupancy for 30 days or less is not protected by the Roommate Law and may, if engaged in as a commercial activity, violate city law.  This includes “bed and breakfast” and Airbnb occupancies.  The City is presently enforcing laws involving this sort of activity fairly vigorously, and violations and fines may be issued against the building where the activity is located as well as the offending apartment owner.  Short-term occupancies may also violate the building’s underlying mortgage or its insurance policies.  (Non-commercial short-term occupancies, e.g. the visiting cousin from Kankakee, do not violate city laws, mortgages or insurance.)

If you have any questions concerning permitted occupancies or have a potential issue in your building, please contact us.

This memorandum was initially issued by the cooperative/condominium practice group of Balber Pickard Maldonado & Van Der Tuin, PC which joined Smith, Gambrell & Russell, LLP on February 1, 2017, and now practices as part of SGR’s cooperative/condominium practice group.