A Subtenant’s Roommate

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A shareholder in our co-op has moved out and now has a subtenant living in his unit. This subtenant went through all the proper co-op application channels, including signing an appropriate sublease. Now this subtenant wants to bring in an unrelated roommate. Can the board require this new person to apply like the original subtenant, or is the original subtenant covered under the New York Real Property Law (RPL) Section 235f allowing her to bring in her own roommate? I know the law applies to tenants; does it also apply to subtenants?

New York State adopted the Roommate Law (New York Real Property Law, Section 235f) in 1983 in part to deal with widespread controversies regarding subleasing, which, in the words of the legislature, resulted from the “speculative and profiteering practices on the part of certain holders of apartment leases, leaving many subtenants without protection and removing many housing accommodations from the normal open housing market.”

In other words, a tenant would attempt to avoid subletting restrictions by claiming that a subtenant was a roommate, but when the landlord took legal action in response, the subtenant would unfairly suffer along with the tenant.

The legislature also intended the Roommate Law to respond to its conclusion that “judicial decisions refusing to extend the protection of the human rights law to unrelated persons sharing a dwelling will exacerbate this serious problem; that unless corrective action is taken by the legislature, thousands of households throughout this state composed of unrelated persons who live together for reasons of economy, safety and companionship may be placed in jeopardy.” Translation: a tenant should be allowed to take into an apartment a non-family member who actually is a roommate and not just a subtenant.

So with those dual lofty goals, the legislature endeavored to craft a law that would stop one group of tenants (“holders of apartment leases” engaging in “speculative and profiteering practices”) while assisting another group (to protect the rights of “unrelated persons” wanting to live together for “economy, safety and companionship”). This had the potential to create unbridled numbers of ambiguities, disputes, and litigations; and it did, though arguably it could have been worse.

Early on, the courts decided that the Roommate Law applies to co-ops, which is no big surprise because, as is widely known, co-op shareholders do not own their apartments directly but rather only stock in the co-op corporation and the right to occupy a corresponding apartment under a proprietary lease.

As an aside, the law’s applicability to condos is far more cloudy. The owner’s occupancy of a condo unit is not granted by a “lease or rental agreement,” to which the law applies. So, the Roommate Law itself does not permit a unit-owner to take in a roommate; instead the condo bylaws would determine that. In fact, most do not expressly allow it, although New York State and New York City anti-discrimination laws might require it. The lessee of a condo unit arguably could, however, invoke the Roommate Law and bring in a roommate even though condo leases almost always are expressly subject to condo bylaws and other governing documents. That is because the Roommate Law makes any waiver in a lease “null and void.” On the other hand, a unit-owner also seemingly cannot grant rights greater than he has, so if the unit-owner cannot take in a roommate then arguably neither can his tenant.

The Roommate Law grants the right to have a roommate to a “tenant,” whom it defines as “a person who is either a party to the lease or rental agreement for such premises.” So that language is almost certainly broad enough to cover not only the proprietary lease between a co-op and a proprietary lessee, but also the sublease between a proprietary lessee and a subtenant. In short, a co-op sublease is a type of “lease or rental agreement,” and thus, according to the law, the sublease should be construed to permit occupancy by a roommate of the subtenant.

Otherwise, the situation could arise in which the subtenant signs the sublease, takes occupancy, decides to take on a roommate for “economy, safety and companionship,” and is deemed unable to do so simply because the subtenant occupies based on a sublease rather than a lease. While I found no case definitively deciding this issue, I believe that is a position that few, if any, New York courts are likely to uphold, even in these Tea Party times.

I also believe that this would be the case even if the prime tenant and the subtenant had all along known that the subtenant intended to bring in a roommate and had failed to disclose that to the co-op at the time of the sublet application. The policies supporting the law are so clear and strong that the courts would deem the co-op on notice that, in granting consent to the sublease, the co-op should have been aware that the subtenant had the right to bring in a roommate, and that any representation to the contrary by the proprietary lessee or subtenant would be the equivalent of an unenforceable waiver of this right.

By the way, the subtenant is allowed to charge the roommate whatever the market will bear – although the subtenant must reside there simultaneously with the roommate. If the subtenant is the sole named lessee in the sublease, however, then only one roommate is allowed, although both the subtenant and the roommate may bring in family members so long as the total occupancy does not exceed legal limits.

Gaining Access

I’m on the board of my co-op, and we had a problem getting access to an apartment to repair an emergency leak that was flowing into the apartments under it. The apartment owner was not home, but he has a Rottweiler dog, and the building staff was unwilling to go into the apartment. We had to turn off service to all the apartments in the line until we could arrange for access, at some expense and great inconvenience to those affected. Is there anything we can do to prevent this from happening again? Is there any way we can force residents to get rid of dangerous dogs?

The standard co-op proprietary lease provides that co-op staff shall have access to make emergency repairs “at any time and without notice,” can use the apartment’s keys to do so, and can break in if the keys are not available or if they do not work. With that plainly stated, an apartment owner logically should not be able to undermine the co-op’s ability to so act by leaving a dangerous dog free to attack staff as they enter. The problem, of course, is that no dog owner can be expected to muzzle or restrain his dog while it is alone in the apartment based on the remote possibility that emergency access might become necessary on any given day.

One practical solution is to require apartment owners with dogs to provide current work and cell phone numbers to the co-op so that building staff can reach out to an owner if access is necessary, and arrange for the owner to quickly come home and provide safe access. While this will not work in all cases, it should reduce the likelihood of a repeat of what the questioner’s co-op experienced.

The co-op also could make it plain to apartment owners with dogs that if they do not provide updated contact information or respond to calls, the co-op will have no choice but to pursue other avenues, such as summoning the police or the dog control authorities, and that this might result in the dog’s being removed from the premises and the apartment owner’s paying any associated costs.

The co-op would have an uphill battle, however, trying to prevent this problem in the future by requiring the removal of dangerous dogs. New York City law provides that landlords (including co-ops) cannot require removal of a dog or other pet that a tenant has harbored “openly and notoriously for a period of three months or more” and of which “the owner or his or her agent has knowledge,” provided that the harboring is not prohibited by any applicable law.

New York State law contains various provisions defining (although not by breed) dangerous dogs, establishing corresponding liabilities, and empowering municipalities to further regulate them. New York City apparently has not done so. So there is no law preventing the harboring of any particular breed of dog in a New York City apartment.

In 2009, however, the New York City Housing Authority (which, in any case, is expressly exempt from the Dog Law) adopted rules banning residents of its buildings from harboring “dangerous dogs, fighting dogs or attack dogs” and expressly banning the “dog breeds (either full breed or mixed breed)” of “Doberman Pinscher, Pit Bull and Rottweiler.” This apparently required removal of existing dangerous dogs (although it is possible that this was challenged and not strictly enforced). It also then banned dogs “expected to weigh over 25 pounds when full grown,” but only prospectively.

Co-ops also can and do bar dogs by breed, as well as weight, but only prospectively because the Dog Law applies to them, assuming that its “three month,” “open and notorious,” “knowledge,” and other conditions are met. The appellate court governing Manhattan and the Bronx has held that the Dog Law does not apply to condo unit-owners, although, without more, it still might be hard, in the face of common law waiver principles, for a condo to prevail against such a unit-owner harboring a dangerous dog for an extensive period before implementation of a ban.

So the questioner’s co-op could adopt such a rule to prevent harboring of subsequently acquired dangerous dogs, but that would not solve the problem regarding the existing dangerous dog that prevented the leak repair. I also note that some dog enthusiasts question whether co-op or condos may bar dogs by breed, although I am aware of no case law holding that they may not. Since a co-op or condo can bar dogs altogether, at least prospectively, it follows that their boards also certainly can exercise their business judgment to bar certain categories of dogs, particularly if armed, to overcome any allegations of bad faith, with some reliable data confirming those banned as dangerous.

There are a few other ways for the questioner’s co-op to get at the problem of the existing dog. One is the exception in the Dog Law “where the harboring of a household pet causes damage to the subject premise [sic], creates a nuisance or interferes substantially with the health, safety or welfare of other tenants or occupants of the same or adjacent building or structure.” So, if the dangerous dog interfered with the emergency repair leak, then arguably this section could be invoked and the questioner’s co-op could demand removal of the dog. The problem, of course, is that the dog’s owner would counter that the need for the emergency repair was an isolated occurrence, which, in itself, likely falls far short of the sort of recurrent misconduct that the nuisance and related grounds require. So, only if the dog has caused disruptions in and around the building beyond interfering with the emergency repair, or on multiple occasions regarding repairs, could the co-op start to build a case for this.

One other possibility is for the co-op to declare the apartment owner’s conduct objectionable in effectively preventing or delaying the emergency repair of the leak, and warning him that the co-op will vote to terminate his tenancy if something similar recurs.

If this were litigated, the co-op would need to overcome a likely claim that this would be a back-door way for the co-op to evade the Dog Law. Long before that, however, this might encourage the owner, at the very least, to provide the contact information mentioned above. The apartment owner probably would not muzzle, or otherwise restrain, the dog while left alone in the apartment, and instead rationalize that the emergency leak would not, in all likelihood, recur; and even if it did, that he could fight the co-op in a number of ways if it acted to terminate his proprietary lease.

In the end, co-ops and condos can exclude dangerous dogs in their pet policies, even if the policy is otherwise quite permissive. At least that way, the number of dangerous dogs will not grow in the building, and inevitably diminish over time, especially because the current case law tips against allowing a tenant to replace one dog (whether dangerous or not) with another.

During the long interregnum, however, the questioner’s co-op must resign itself to implementing the carrots and sticks I have discussed, as well as hoping and praying that this and any other dangerous dogs do not again prevent emergency access to the co-op’s apartments, or cause some other much worse disruption.