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Ask an Expert: Does the co-op board need to approve my roommate?

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Q I own a two-bedroom co-op, and after losing my job last spring, things have gotten a little tight.  I want to bring in a roommate to help cover costs.  Do I need the board's approval? 

A.   This much seems clear:  New York’s so-called “Roommate Law” (Section 235-f of the Real Property Law) allows co-op owners (and renters) to take in “one additional occupant” in addition to immediate family, so long as the owner/renter is living in the apartment at the time.

In your situation, it's likely that your only obligation is to inform the board (or landlord) about your new roommate within 30 days of the time he or she moves in, says real estate lawyer Steve Wagner of Wagner Berkow. 

However, the question of whether you are entitled to a bring in a paying roommate without board approval is more complex.

“If the roommate is paying rent to live in the apartment,” says real estate attorney Stuart Saft, “that person is not a roommate, but a subtenant, and based on the prohibitions contained in most proprietary leases, would require the board’s consent.”

Real estate lawyer Jeffrey Reich says that  "while charging the roommate a fee may give the board a claim [emphasis added] that there is an element of subletting going on, the case law in this area indicates that tenants and shareholders are allowed to charge their roommates for use of the apartment and its furnishings."

In the end, the strength of the board's argument may depend on how much rent you are charging.

"A shareholder can split living expenses with a roommate," says real estate attorney Eric Goidel.  "If, however, the shareholder is profiting on the arrangement, the apartment corporation could deem that a sublet requiring an application process and consent."

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