Q&A: Foreigners in Flats

Q We live in a medium-sized co-op in Chelsea with seven apartments per floor. It is clear to me that a woman who lives on our floor is using one or two of her bedrooms as a bed and breakfast (B&B). She must advertise on something like European Craigslist because there are always foreigners coming in for a long weekend or a week at a time. I have mentioned this to the board of directors, but they are not planning to do anything because there are people who have girlfriends and boyfriends living with them long term. The board is not sure where to draw the line on guests (the policy is no more than a month), and they cannot be sure this woman is charging people to stay with her. I feel this is more of a safety issue. My daughter is always running out into the hallway when she hears people, but it’s never people we know going into this apartment. It makes me very uncomfortable. You’d like to think that an owner knows their visitors. I also think the building staff might be complicit although I cannot be certain of this. Anytime I’ve complained to the super or asked a doorman, who is visiting the apartment, I’m always told it’s a relative. Please give me some advice that I could take to the board. I have no problem with legitimate visitors, but I do have an issue with new people coming almost every weekend.

—Unwanted Visitors

A “Your concern over the security threat posed by a stream of transient tenants whose backgrounds have not been vetted by the board is justified,” according to Attorney Bruce Cholst, a partner at the Manhattan-based law firm of Rosen, Livingston & Cholst, LLP. However, their presence in the building may be unavoidable. The issue is not these visitors’ national origin, but whether they qualify under the law as either “roommates” or “guests” of the tenant shareholder in whose apartment they reside. If they qualify as either, their presence is not subject to board review or approval. On the other hand, if they fail to qualify as either “roommates” or “guests” they are sub-tenants, whose presence can be prohibited or regulated by the board.

“Real Property Law Section 235-f (the “Roommate Law”) allows a tenant-shareholder under certain circumstances to permit other persons to reside in his apartment without board approval- irrespective of any restrictions contained in the proprietary lease. Specifically, where there is only one tenant-shareholder of record, the statute provides that he as well as any member of his immediate family and “one additional occupant and dependent children” of that occupant may reside in the apartment without board consent, provided that the tenant-shareholder of record or his spouse occupies the premises as his primary residence. (The Roommate Law allows even more occupants and dependent children when there is more than one tenant-shareholder of record). Courts have ruled that payment of rent to the tenant-shareholder of record does not disqualify an occupant from being a “roommate” under this law. The board is, however, permitted to require tenant-shareholders to disclose the identities of their “roommates.”

“Thus, if as your letter suggests, the offending neighbor is the only tenant-shareholder of record in her apartment, and she occupies the premises as her primary residence, she is entitled to harbor one other non immediate family resident (i.e. the “roommate”) and his or her dependent children without board approval, even if she is receiving rent. However, any additional boarders (other than immediate family members) who are not dependent children of the one roommate are not permitted to occupy the apartment without board approval.

“Under the typical co-op proprietary lease, tenant-shareholders are permitted to harbor “guests” in their apartment for up to thirty days without board approval provided that the tenant-shareholder occupies the apartment contemporaneously with the guest. I am unaware of any statute or court decision, which permits a person who pays money to his “host” to qualify as a “guest” within the meaning of the proprietary lease. Such a conclusion would fly in the face of the nearly universal restriction in a residential co-op proprietary lease that the apartment not be used “for any purpose other than as a private dwelling.” Thus, I would argue that to the extent any of this neighbor’s boarders are paying her a fee they are not “guests” within the meaning of the proprietary lease. The board has the right, by house rule, to require registration of all guests with management.

“The best way to ascertain and document the number of boarders, their relationship to each other (i.e. parent/dependent child) their relationship to your neighbor (i.e. immediate family member), and whether they are paying a fee is to engage a private detective to observe and interview whomever enters and leaves the apartment over an extended period of time.

“In any event, the board should demand in writing that your neighbor register all her boarders with management on an ongoing basis. The mere burden of regular registration would tend to discourage maintenance of a bed and breakfast hostelry within the building. Also, any discrepancy between the information ascertained by a private investigator and that which is provided by your neighbor on a registration form could be used against her in any court action.”

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