A lease can expand the 'Roommate Law'

Real Estate Weekly, Feb 2, 2000 by Edward L. Schiff

The landlord of a building on West 91st Street in Manhattan prepared a lease with a provision dealing with the "Roommate Law," Section 235 of the Real Property Law of New York. This is the statute that allows a tenant to have a roommate in the apartment, even if the lease does not permit such an addition occupant.

The landlord commenced eviction proceedings against the tenant because the tenant had not one roommate, but three separate individual roommates. The landlord claimed that the tenant, in permitting three roommates in the apartment, violated the lease provision, as well as the Roommate Law itself.

The tenant's position was that while he admitted having three roommates in the apartment, it was not a violation of the lease and it was permissible under the statute.

Judge Lucy Billings of the Civil Court, New York County, who conducted the trial, stated that this case required his determination as to the extent to which a residential lease may limit roommates consistent with the Roommate Law.

The lease provision which was before Judge Billings stated "You shall use the Apartment for living purpose only. The Apartment may be occupied by the tenant or tenants named above and by the immediate family of the tenant or tenants and by occupants as defined in and only in accordance with Real Property Law, Section 235-f."

The Judge stated that if the Roommate Law protects the conduct of the tenant, then such conduct cannot be a breach of the lease, because the lease cannot prohibit conduct protected by the statute.

The statute states that any provision in a lease purporting to waive a provision of this stature is null and void. Therefore, a determination of whether a violation of the lease occurred depends upon the statute's interpretation and application. The statute defines an occupant as a person, other than the tenant or a member of the tenant's family, who occupies the apartment with the tenant's consent. Since the tenant had three roommates, the landlord's claim for eviction is valid only if the three roommates are not "occupants" as defined by the statute.

The Court stated that the statute, on its face, does not limit the number of roommates, as long as they are unrelated persons living with the tenant and with his consent. Thus, under the definition of "occupants," the lease was not breached by the tenant.

Judge Billings went on to say that even if the lease provision is construed not solely on the basis of the definition of "occupant," the result is the same.

Section 235-f (3) provides: "Any lease or rental agreement for residential premises entered into by one tenant shall be construed to permit occupancy by the tenant, one additional occupant, and dependant children of the occupant provided that the tenant or the tenant's spouse occupies the premises as his primarily residence."

The landlord had the right under the statute to limit the number of roommates to one, if he chose to do so. Instead, the landlord's lease provided that the apartment may be occupied by occupants as defined in the Roommate Law. While the statute's provision concerning the number of occupants allows the landlord to restrict roommates to one, it is not a prohibition against a tenant having more than one unrelated roommate. The statute merely limits a landlord's ability to restrict a tenant from having a roommate at all.

The statute was enacted to protect tenants and occupants, not landlords. Nor was the law enacted to provide a right to landlords to enforce occupancy limitations.

Thus, if the lease expressly limited the number of "occupants" to one, such a clause would be enforceable. While limiting the occupants to one would be permissible and consistent with the Roommate Law, a greater number is equally "in accordance with" the statute, as provided in the lease involved in this case. (Roxborough Apts Corp. v Becker NYLJ Sept 15, 1999, Pg 27, Col 1).

In the light of this decision, it is important that care be taken in preparing a residential lease so that it properly reflects the intention of a landlord to restrict roommates to only one.