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Q. I recently rented an apartment in a co-op that is rather strict in their application policies. Because they are so strict, my girlfriend and I decided that I would apply alone. My application was accepted and I am now preparing to move-in. However, I would still like my girlfriend to live with me.
Is she permitted to move in even though she is not on the lease? Can the landlord or the co-op kick her out if she does?
A. In all likelihood, your girlfriend is entitled to move in with you and neither your landlord (the apartment owner/shareholder) nor the co-op could legally evict her without cause.
In 1983, New York State adopted Real Property Law, Section 235f, better known as the “Roommate Law.” The law states that “any lease or rental agreement for residential premises entered into by one tenant shall be construed to permit occupancy by the tenant, immediate family of the tenant, one additional occupant, and dependent children of the occupant provided that the tenant or the tenant's spouse occupies the premises as his primary residence.”
This provision basically provides that you may have a non-related roommate and that any immediate family members of you or children of your roommate may also live with both of you. The law cannot be waived by any lease provision.
Soon after the law passed, courts determined that it applied to not only rental apartments, but also to co-ops.
Your situation is a bit more novel than well-established case law in that it begs the question of whether the Roommate Law applies to a subtenant in a co-op. The person who purchased your apartment (by purchasing shares in the corporation that owns the building) is in fact a tenant of that corporation by way of what’s called a proprietary lease that they would have signed when they bought the shares. When you rented the apartment from them, you became a subtenant.
The Roommate Law provides that “tenants” are the subject of the protection of the law and goes onto to define the term as “a person who is either a party to the lease or rental agreement for such premises.” This statutory language is almost certainly sufficiently broad to apply to not only shareholder/tenant (your landlord) but also their subtenant (you), though I do not believe there has been a case on point in New York. Such an interpretation of the language would not only seem a logical and correct reading but would also act to advance the stated public policy of the statute in protecting tenants who elect to have a roommate for reasons of “economy, safety and companionship.”
There are some limitations that should be noted. First, both you and your girlfriend will need to use the apartment as your primary residence. Second, the law requires that you notify your landlord of the name of your roommate within thirty days following the day that your roommate moves in or 30 days after they request more information from you. Although there is no explicit penalty in the law for failing to do so, it could possibly be construed as a breach of your lease (for which you could be evicted) if your lease contains a provision requiring that you give such notice.