“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.”