Q Does a cooperative board have the legal right to create their own occupancy  guidelines?  

 —Curious Cooperator  

A “The proprietary lease (sometimes called the “occupancy agreement” in certain co-ops) of a cooperative typically has in its ‘use’ clause the occupancy guidelines,” says Andrew Brucker, a partner in the New York-based law firm of Schechter & Brucker, P.C.  

 “The provision usually states that the unit can be used for residential purposes  only. However it is not unusual for leases to also allow the unit to be used for “home occupations,” and a list of what occupations quality are in the law. As noted in the law, home occupation use is only legal only if it is incidental  to the residential use, and no more than 25% of the unit is used for this  purpose.  

 “The lease also states precisely who can use the unit. Typically, a unit can only be used by the shareholder and his/her parents,  siblings, or children. But some leases go further, and allow other relatives and even domestic partners  while others may contain a provision in regard to guests. Another common clause provides that no more than one married couple may occupy  the unit.  

 “However, it is quite unusual for a lease to state just how many people may  actually live in the unit. Certain municipalities have such restrictions, such as New York City, where the  law states that you must have at least eighty square feet for each person  living in a unit. But this figure is ridiculously small. Therefore, some co-op boards set forth  their own limitations. For example, a board might say that in a one bedroom apartment, you cannot have  more than 3 people living in the unit.  

 “This sort of restriction is typically used in the admissions process, such that  if six people applied to live in a one-bedroom, their purchase applications  would be denied. Since the “normal” co-op requires consent of the board before there is a sale, and since the board  can reject an application for any or no reason (so long as the board is not  illegally discriminating), the board can certainly control the number of people  in the apartment in this manner.  

 “But what if there is restriction in the house rules, and not in the lease, and  the shareholder (who was in compliance when they bought the unit) then violates  the rules. For example, what if the house rules state that only three persons  may be in a one bedroom apartment, and a couple moved in with one child. Then the wife gives birth to twins. Could a board bring an action? Would a court evict this shareholder?  

 “Though there is no case on point, it is doubtful that a judge would evict a  family because it grew larger. Or because a family now included invalid parents who moved in after the  purchase. Therefore, if a co-op board attempts to limit the persons who will be living in  the apartment with the shareholder (beyond the limits in the lease), it might  find that it can only succeed prior to the closing.”