I do believe that in order for the Room-mate Law to work the tenant must live in the apartment at the same time as the room-mate. As for relatives, how do you really know if they are related, do you ask for proof (is it legal too)?

Check your bylaws, ours list the relatives who are elegable to stay. Nieces and Nephews are not listed, therefore in our coop they would have to pay a sublet fee.

AliceT

bandit61 - Our Prop Lease and most others states that the apartment can be occupied by a SH and a SH's spouse, siblings, children, grandchildren, parents, grandchildren and domestic employees.

Aunts, uncles, cousins, nephews, etc. are not part of a SH's immediate family and not considered authorized occupants. Check your Prop Lease. If it states the same as ours and your SH's niece lives in her apartment without board approval, she'd be considered a sublet. Check this with your coop attorney too. You should be able to charge a sublet fee and require any other terms you have for sublets (application package, interview).

My coop has a $750 fine for any "invalid occupancy" - i.e., for anyone not authorized and approved to live in an apartment, for a tenant whose sublet term expired but hasn't moved out and the SH does nothing in good faith to get the tenant out, etc. We've had to charge this fine a few times and the SHs all paid it and had the occupant move out. If they didn't pay it, we'd let it sit on their account as a lien. If they didn't make the occupant leave we'd have to take further legal steps but that hasn't been necessary.

The key word is "and" not "or" so with the shareholder. IF the shareholder isn't living there it is a sublease

The Roommate Law applies only when the Lessee is concurrently occupying the apartment. If the shareholder has moved out, the Roommate Law doesn't apply.

The rest is a matter of checking the "Use of Premises" paragraph in your Proprietary Lease (it's Paragraph 14 in the lease used by many NYC co-ops). If the list of permitted residents says "the Lessee AND ..." then the courts have ruled that the shareholder must be occupying the apartment along with the other person.

On the other hand, if your lease says the permitted occupants are (for example) "the Lessee, children, spouse, ..." -- with no AND after Lessee -- then anyone in the list is allowed to live in the apartment, with or without the shareholder.

"and" is ambiguous and courts has upheld it as meaning "or."

Marvin G wrote:
>"and" is ambiguous and courts has upheld it as meaning "or."

That's not the current status, unless there's a very recent decision of which I'm unaware. There was one early anomalous case that ruled as you describe (Barbizon Owners Corp. v. Chudick, 1994), but it has now been settled law for many years that "Lessee AND" requires simultaneous occupancy by the shareholder.

Family members may also be considered subleasing the unit if the shareholder is not in residence. Example: parents and children living without the shareholder are considered tenants. It is up to the board to consider if they wish to enforce the sublet fee on family members living the apartment. In cases where the shareholder is keeping the apartment for parents or a child, it is understood that the shareholder is not charging fair market rent and, in reaching to a decision, this must be considered too.