Roommates and Boarders in Co-ops What Are Your Rights?

Roommates and Boarders in Co-ops

Co-op residents are used to restrictions on who may live in their unit, for how long, and with whom. Thanks to the proprietary lease, boards have extensive power over these issues, and generally forbid practices including subletting - the most typical form of non-shareholder occupancy. But what about other types of non-shareholder residents, such as roommates or boarders? Is the typical co-op shareholder be free to make such arrangements?

The Occupancy Clause

Most proprietary leases afforded to shareholders in co-ops contain an occupancy clause that outlines who can live in the unit with the shareholder. Simply stated, a husband, wife, parent, child, or other close family relation may share or cohabit in the unit with the shareholder--but not without, or in place of, the shareholder. If the shareholder doesn't actually reside in the unit, occupancy by the various family members enumerated in the clause may be considered a sublet, which in most co-op buildings requires board approval -- if they're even entertained at all. That’s not to say that your adult child, parent, or brother- and sister-in-law can’t stay in your apartment for a few days while you’re on vacation. But it might mean that they can’t live there for a year while you’re on sabbatical in Nepal.

What About Roommates?

There are times and situations, though, when a shareholder may want to take in a roommate or boarder to help defray the costs of ownership. For instance, empty nesters with an additional bedroom might consider renting it out as a way to increase their savings for retirement. Or say a single person with a spare bedroom decides to change careers and go back to school; he or she can’t afford to carry the unit on a reduced income, but doesn’t want to sell -- bringing in a paying housemate is an attractive option for some. 

So...can shareholders bring a non-related resident into their unit for the long term? And equally importantly, can they do this without board approval?

The Cooperator surveyed a number of co-op buildings and found that there is little consistency -- and even less knowledge of shareholder rights -- relative to this question. All the shareholders surveyed believed that they were prohibited outright from having a roommate or boarder. No single building surveyed had a concrete policy position. The truth is -- perhaps surprisingly, both for those shareholders and their governing boards -- a co-op shareholder has a clear and inalienable right to take in a roommate or boarder without board consent under what's commonly referred to as New York State’s Roommate Law.

Your Rights

According to Mark Hakim, an attorney specializing in co-op and condominium law at the Manhattan-based firm of Schwartz Sladkus Reich Greenberg Atlas: “Under New York’s Real Property Law Section 235-f, also known as the Roommate Law, tenants have a statutory right to a roommate. Any lease -- including a co-op’s proprietary lease -- containing a restriction prohibiting same is ‘unenforceable as against public policy.’ In a co-op, the named tenant is the shareholder and is permitted to have a roommate. Under certain circumstances, the roommate’s immediate family members may be permitted residence as well. The shareholder can likely charge a market rate to the roommate, but the shareholder is required to reside simultaneously with the roommate.” It should be noted that if the shareholder was not living with the roommate, the arrangement would be a sublet -- which is treated completely differently and can be regulated by the board for the corporation.

“This simultaneous occupancy provision,” Hakim continues, “is an important aspect of the Roommate Law. Further, the tenant is required to inform the landlord -- in this case the co-op’s board of directors -- within 30 days following the commencement of occupancy by such person, or within 30 days following a request by the landlord.”

Hakim further explains that while a co-op’s board of directors has broad powers under New York’s business judgment rule, and the proprietary lease contains restrictions, it does not have a right to approve or reject shareholder’s roommate. But it generally, does have a right to approve or reject a subtenant or assignee of the lease. “No matter,” he says, “a board may still require a shareholder to disclose certain information related to the roommate, including producing photo identification to verify that it is, in fact, the named roommate making use of the apartment. And the board may wish to verify the amount being charged to the roommate to help determine whether the roommate is in fact a roommate or a subtly disguised subtenant. There is a big difference between splitting costs and profiting from an arrangement. Finally, note that regardless of the right to have a roommate, no apartment may exceed the occupancy standard of 80 square feet per person. Boards should keep that in mind as well.”

AJ Sidransky is a staff writer for The Cooperator, and a published novelist.

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  • The article should note that the Roommate Law does not allow unlimited roommates -- rather, the number of roommates is limited to the number of shareholders of the co-op unit. So, if there is 1 person on the share certificate, that shareholder can have 1 roommate. If there are 2 people on the certificate, maximum 2 roommates. Etc. We had a situation of a single shareholder with several roommates. It became an untenable boarder situation. The Roommate Law helped the board when fighting in court for removal of an unwanted boarder. Because the 1st one was "legal" but any simultaneous ones after that were not.
  • The author notes that, even if a roommate is legal under the Roommate Law, the co-op board can require copy of ID, copy of the lease agreement, etc. Presumably the board also can require the shareholder with "roommates" to supply a signed non-smoking policy that the board requests per building policy. What does the author recommend when the shareholder with roommate(s) fails to comply with board requests/building rules? If the roommate is legal under the Roommate Law, what teeth does the board have? We are struggling with this in our co-op. The boarders consume utility resources and represent a potential security issue when there are random/unknown persons going in and out, claiming to live in the building. What is a co-op board to do?
  • Subletters can not have a roommate, but a co-subletter. The arrangements between the sublettets are not monitored by the board. But the co-subletter can be asked what their arrangement is at the board interview to let the co-subletter if they are being ripped off.
  • Roommates must comply with Coop rules. If they don't, they can be fined or the shareholder can be asked to remove the roommate. All people who reside in the coop must follow the coop house rules or if the shareholder does not comply along with his roommate ,can be evicted a ccording to the proprietary lease ked
  • New York’s Real Property Law Section 235-f does not mention that a board member can ask to see how much money a shareholder makes off the roommate to ascertain whether the person is a roommate or subtenant. There is no case law that supports what this lawyer stated. The board can only request the name of the roommate and nothing else.
  • I have a 2br co-op in Manhattan. I also have my townhouse in Los Angeles because that is where I pursue acting for TV and film mostly. I have had room-mates in my NY apt as I come in 1-2 times a year. My room-mate is leaving at the end of June and I have a new room-mate who wants to move in the first week of August. The Mgt company is trying to tell me that it constitutes as a sublet. I told them no, he is a room-mate. My bedroom is mine and my clothes and furniture are there. Plus I pay the utilities. They are saying that I should be there more than I am in Los Angeles. What are the legalities of this? Thank you.
  • Larry, your co-op proprietary lease and bylaws should provide some guidance. Generally, a roommate lives with you, and a subtenant occupies the co-op without you. In order to prove "roommate," you may need to demonstrate that you actually live in the co-op. That can be via legal/tax address (is co-op address the address listed on your tax return) or physical presence (do you sleep in the co-op at least 183 nights per year). Even if it is deemed a sublet, there still may be a way to do it (check your lease).
  • Larry, the Roommate Law states you have to simultaneously live with the roommates to have the law protect you. Technically you are subletting a room to your roommate because you also live in LA. If a board member has a personal issue with you, hires a private investigator and finds out you live in LA, the board can take you to court to evict you after the moratorium ends. Also, you board may even install a camera in the hallway at some point to prove you are illegally subletting rooms. Your lease will state how many days you have to live in your apartment to fulfill the permanent residents clause.
  • I have been renting my apt as a lease holder from the coop owner for over 7yrs, I renew my lease agreement on a 2yr basis. The apt is in West Harrison, Westchester County, NY, what us the allowable increase for a 1 & 2yr lease, I believe my landlord has and is overcharging me, Also this past yr I did not receive a lease until well after the month or maybe it’s 3 month that the landlord must send a lease renewal, it took so long I called his office and that’s when his manager/assistant made an agreement with me, he wanted a $100 increase for 2yrs and then he changed it to $70. However he kept that $100 on invoices, I recently brought this up and now he claims that “he” is going by 1yr lease which was up end of June and that he will correct this past year invoices and give me a 2 yr lease starting now at the increase he originally wanted, my rent went from $1400 to $1460 or $1470 he wanted $1500 a yr ago. How can he assign me to a 1yr lease when he claims I did not renew a lease and then tells me he saw one if my emails that stated my asking about the increase but not stating what greatly lease I wanted. I feel that this is all to get that $1500 now, wheich is not right in my eyes. I need some truth here, thank you!
  • Hello, if I want my significant other to live with me in my coop apt, can the board impose fees similar to what it imposes for sublets (application fee, percentage of my maintenance) and move-in fees and move-in deposits in connection with my significant other coming to live with me? Thank you.
  • Is there a difference between a "boarder" and a "roommate" ? if not, why use both terms, as if they were interchangeable, especially if "boarder" is not used in Real Property Law Section 235-f, [Roommate Law] Hope the author, AJ Sidransky will clarify. I am considering using my 5th fl 1 BR co-op on the UWS as my non-profit workspace ( i partitioned it years ago when I lived there full time as a doctoral student). I want to share with a trusted person, who also runs a business. Q. Would such an arrangement allow me protection under Real Property Law 235-f. We would be workplace roommates! Please recommend a co-op lawyer who would know. Thanks
  • How to get rid of unwanted family members that’s not on lease nor pays rent?
  • SECTION 235F ~ (2) clearly states that immediate family can not be restricted occupancy. How do coop boards dismiss this law and not allow immediate family to live in a residence owned by immediate family?
  • If you live in a co-op and have a roommate, can't you charge any amount of rent as long as long as your roommate agrees to it? As an example, if you live in a two bedroom co-op and your maintenance is $2500 per month, isn't it legitimate to charge your roommate $2000 per month? I thought that was the case. Also, does the co-op have the right to interview the roommate just as they would a purchaser? Roommates are generally not interviewed in buildings. Is it different in a co-op?
  • My sister has been living with us for 6 years. She is chronically I’ll and financially dependent. Our son third child needs her bedroom so we are looking for an apartment. Our offer was accepted but we’re looking at running into an issue with occupant laws. We will pay the monthly bills, we are paying cash for the apartment, but it sounds like we can’t do all of that and not live there? It is a 1 bedroom and she would live there full time with no financial responsibility. Do we have any legal precedence for this situation? Broker suggested adding her as co-buyer but my husband doesn’t want her name on the deed with him.