Q&A: Non-Owner Residential Status

Q Can a non-owner's spouse remain in a co-op apartment when the shareholder spouse vacates the marital residence but the parties remain husband and wife?

—In Name Only

A “The short answer to this inquiry is that it depends upon the terms of the proprietary lease and the approval of the board or shareholders,” says New York-based attorney Jules Haas.

“The occupancy requirements of a cooperative apartment will be set forth in the proprietary lease. Typically, a proprietary lease requires that the tenant-shareholder occupy the apartment and that any subletting or assignment be accomplished through the procedures provided in the proprietary lease as implemented by management. The proprietary lease may even require that the apartment be used as a primary residence. Of course, no problem will arise if the proprietary Lease specifically allows family members to reside in the apartment even if the named shareholder vacates.

“However, unlike rent regulated apartments, family members such as husbands and wives do not obtain succession rights to cooperative apartments when the other spouse vacates. Therefore, if the non-vacating spouse desires to remain, the terms of the proprietary lease relating to subletting or assignment will most likely apply.

“The proprietary lease subletting or assignment procedure often requires approval by the board or the shareholders. The authorization to grant approval may be unqualified or may be limited to the extent that approval may not be unreasonably withheld. In sum, the terms of the proprietary lease must be examined and the stated procedure followed to avoid a default under the lease and unpleasant litigation.”

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