Q&A: Subletting Sisters

Q  I have used my sister’s co-op apartment as my primary residence for 12 years. She holds the  proprietary lease and owns the shares but she has never lived here. Recently  the old co-op board was replaced, and the new board is trying to force me out.  I’ve never had a problem with my neighbors or violated any particular house rule.  The building and board have ignored my presence here for more than a decade—what are my rights as my sister’s tenant, and how can I stay in my home?”  

 — Manhattan Co-op Renter  

A  “The questioner describes herself as the sister’s ‘tenant,’ which suggests some type of subleasing arrangement,” states Phyllis H. Weisberg, an attorney with the Manhattan-based law firm of  Kurzman Karelsen & Frank, LLP. “Many, but not all, cooperatives require that a shareholder first obtain board  permission before subletting. The questioner should review the proprietary lease and the cooperative’s rules to determine what the requirements for subletting are in the building  and whether this arrangement has run afoul of them.  

 “It is also possible that as the shareholder’s sister, the questioner is a “permitted occupant” of the apartment. Thus, most proprietary leases include a provision which permits the  tenant-shareholder to live in the apartment with his/her family, typically  defined to include the shareholder’s spouse, their children, parents, grandparents, brothers and sisters. The catch  is that many proprietary leases further require that a permitted occupant can  reside in the apartment only while the shareholder resides there as well. This requirement of concurrent occupancy is derived from the inclusion of the  word “and” in the listing of permitted occupants in the proprietary lease. Consequently,  if your sister’s proprietary lease provides that the apartment may only be occupied by the “lessee and the lessee’s spouse, their children, etc.” or a similar variation of the foregoing, and your sister has never lived in the  apartment with you, the board may have grounds to terminate the proprietary  lease and evict you (again, you should consult the proprietary lease to confirm  this).  

 “The questioner notes, however, that she has been living in the apartment for the  better part of twelve years. This raises the possibility that the board may  have waived its right to terminate the proprietary lease on these grounds  (illegal sublet or unauthorized occupancy). Some basic facts which might support a waiver include whether the board/managing  agent has been accepting maintenance payments directly from the questioner;  whether the board and/or the managing agent has been aware of this occupancy  throughout this twelve years period and (until recently) never sought to  terminate the proprietary lease and/or demanded that the questioner move out;  and whether an earlier board or managing agent did, at some point, consent to  this occupancy (either in writing or verbally).”  


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