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Can I Keep My Cat?

A shorter version of this Article originally appeared in Bushwick Daily, where Michelle Itkowitz is the “Tenant’s Rights Adviser”.

Hi, I’m Michelle Itkowitz, an instructor on the Tenant Learning Platform and Bushwick Daily’s Tenant’s Rights Adviser. This is the third article in a series that will bust some common myths contained in your apartment lease. As a New York City tenant, you have many rights. And no matter what your lease says, those rights cannot be taken away.

What Your Lease Says

You vaguely knew that the lease you signed in a building with three or more apartments said, “no pets.” But you just couldn’t help but bring home those two adorable stray kittens you found on the corner of Wilson and Gates late one cold night two years ago. Those kittens grew into beautiful cats—probably the best roommates you’ve ever had.

One day, your faucet started dripping. So, you called your landlord to come and fix it. The landlord’s plumber came in and did the repair. But apparently, the plumber has a big mouth and told the landlord that he saw a cat litter box in the bathroom.

Three days later, you get a scary, threatening letter from the landlord, telling you that your lease says, “no pets,” and you have to get rid of your precious feline companions. Your lease doesn’t end for ten months and you have no plans to move. Is it time to find your cats a new home upstate?

Well, It’s Time to Bust Another Lease Myth! – The Three-Month Rule

Let’s say that you live in a building with three or more apartments in it. If the landlord knows (or should know) about a pet in an apartment, and three months goes by without the landlord suing you, then the pet can stay, and case dismissed! This applies even if there is a no-pets clause in your lease. This situation is commonly referred to as the “Three-Month Rule.” N.Y. Code § 27-2009.1 (Rights and responsibilities of owners and tenants in relation to pets).

By “suing you” we mean that the landlord must, as per the statute, “commence summary proceedings” (i.e. service of the notice of petition and petition). Seward  Park Housing Corp. v. Cohen, 287 AD2d 157 (1st dept. 2001).

The Three-Month Rule only applies if you live in a building with three or more apartments in it. This includes co-ops. See Linden Hill No. 1 v. Kleiner, 124 Misc.2d 1001 (NYC Civ. Ct. Queens Cty 1984).

In our above example, we used a cat. But the law applies to any household pet that is not otherwise prohibited by law, so dogs and rabbits are also good to go.

The Three-Month Rule does not apply if your pet creates a nuisance or interferes with the health, safety or welfare of others. Be a good neighbor and make sure your pet is housebroken and trained.

Openly and Notariously

For the Three-Month Rule to protect you and your pet, you must be keeping the pet “openly and notoriously,” which is a legal way of saying that you are not trying to keep the pet a secret from your landlord. A good example of this is if you are openly walking your dog in and out of the building every day. In this case, the landlord is presumed to know that the dog is there (and probably has stopped to pet it). But see Gidina Partners LLC v. Marco, 11 Misc3d 21 (AT 1st 2005) (Dog was not openly and notoriously kept in the apartment when the tenant was boarding the dog elsewhere.)

But how could a tenant prove that she was not trying to hide her cat from the landlord? Cats don’t (usually) get walked outside, though we’ve seen it in Bushwick.

But cats do get carried in and out of the building to go to the vet. Also, if the landlord calls you or sends you a letter asking you to get rid of your cats, and the landlord sues you more than three months after that phone call, text, email, or letter, then it’s easy to prove that the lawsuit is too late! Obviously, the landlord knew about the kitties more than three months ago, when she was first complaining about them. See 280 E. Burnside Assoc. v. James, 12/27/2018 NYLJ, almID/1547461235NY332932018 (NYC Civ Ct. Bronx Cty.) (Tenant wins on 90-day pet law defense; Landlord knew about the pet based on correspondence when tenant moved in and waited a year to bring the case.); Westchester Gardens L.P., Petitioner, v. Priscilla Vargas, 2019 WL 1087844 (NYC Civ Ct. Bronx Cty.) (“Accordingly, it is the finding of this Court that petitioner did not timely institute the proceeding and thus waived the no pet clause contained in respondent’s lease and cannot maintain this proceeding. The petition is dismissed. This case shows LL know about the dog 5 years ago because of a letter.”)

In terms of cats, “openly and notoriously” keeping them has been held to mean that if any employee or agent of the landlord is in your apartment and at least has the opportunity to see anything that indicates that you have a cat (like a litter box or cat toy), that’s good enough to start the clock running on the Three Month Rule. A litter box in bathroom, is an “unmistakable indicium of cat ownership.” It doesn’t matter if cats are shy and hide. The cat itself does not need to be displayed in public. 184 West 10th Street Corp. v. Marvits, 59 AD3d 287 (2009). Thus, the Marvits case recognized that cats are shy by nature and tend to hide from new people (so relatable). This is true even if that agent or employee does not have a big mouth like the plumber in our above example and fails to tell the landlord. 1700 York Associates v. Kaskel, 182 Misc. 2d 586(N.Y. City Civ. Ct. 1999). In fact,

Who is an agent or employee of the landlord? It can be:

  • A managing agent. 930 Fifth Corp. v. Miller, 2002 WL 229505 (N.Y. App. Term 2002).
  • A superintendent. 1700 York Associates v. Kaskel, 182 Misc. 2d 586(N.Y. City Civ. Ct. 1999) (holding that notice to a building superintendent of the presence of a tenant’s pet is deemed notice to the landlord, and this is true even if the superintendent in fact never reported the pet to the landlord and even if the landlord had specifically set forth a policy that reporting the presence of pets in tenants’ apartments is not part of the superintendent’s responsibilities).
  • Other employees. Seward Park Housing Corp. v. Cohen, 287 A.D.2d 157 (1st Dep’t 2001).
  • Doorman, 1725 York Venture v. Block, 64 AD3d 495 (1st 2009).
  • A building contractor, 184 West 10th Street Corp. v. Marvits, 59 AD3d 287 (2009).
  • Security guards, Met Life Ins. Co. v. Datta, 2002 WL 221077 (AT 1st 2002).

 

Other Things to Know About the Three-Month Rule 

The NYC Council made this rule because it noted that, “household pets are kept for reasons of safety and companionship and under the existence of a continuing housing emergency it is necessary to protect pet owners from retaliatory eviction and to safeguard the health, safety, and welfare of tenants who harbor pets…” Thank you, NYC, for recognizing the value of furry friends.

It does not matter if your lease says, “no pets.” Any such restriction in a lease in a building with three or more units shall be unenforceable and deemed void as against public policy.

Finally, you should note that, “Any waiver under the law is more properly limited to existing pets which are part of the household; it is not reasonably extended to future pets which were not yet in the premises … .” Park Holding Co. v. Emicke, 168 Misc. 2d 133, (App. Term 1st 1996).

For Those Not Protected By the Three Month Rule

It is important to keep two things in mind, however.

FIRST: The Three-Month Rule does not protect people living in apartments in one- or two-family homes. But wherever you live, keep in mind that you do not need to make any quick decisions about your pets if you get a letter like the one we described above.

The landlord must take you to court before he can evict you—a process which, under the best of circumstances, takes a few months. Remember, in NYC, a landlord can never lock you out of your apartment without first taking you to court and getting a judgment of possession against you. Never ignore legal papers from your landlord.

SECOND: Even if the Three-Month Rule does protect you during your lease, if you are not rent-stabilized or protected by some other program, it is always possible that your landlord could eventually refuse to renew your lease when it expires if he or she is still unhappy about the pet.

Therefore, if possible, you should try to negotiate with your landlord and allay her fears about your pet in these situations. If the landlord is refusing to renew, send her a cute picture of the pet and assure her that the pet is not damaging the apartment or bothering other people. Remind the landlord that you have been a great tenant, and the kitties you know are better than the kitties you haven’t met yet!

 

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Am I Allowed To Have A Roommate?

A shorter version of this Article originally appeared in Bushwick Daily, where Michelle Itkowitz is the “Tenant’s Rights Advisor”.

Hi, I’m Michelle Itkowitz, an instructor on the Tenant Learning Platform and Bushwick Daily’s Tenant’s Rights Advisor. This is the second article in a series that will bust some common myths contained in your apartment lease. As a New York City tenant, you have many rights. And no matter what your lease says, those rights cannot be taken away.

Today, We’re Tackling Roommates.

How many people these days can afford to pay rent for an apartment all by themselves, especially in New York City? For that matter, how many people want to live alone? The best roommates are down for a night of wine and Netflix, and they actually clean the bathroom. They’re unicorns, but they’re out there.

If you read the fine print on your apartment lease, however, you might think that you were violating your lease by taking in a roommate. Let’s take a closer look at these lease clauses and busts the myths built into them.

First, let us look at some actual lease clauses, which prohibit you from having a roommate. Here is one in a typical, old-fashioned lease:

“The apartment may be occupied only by Renter named in this lease.”

Here’s another clause, this one was pulled from a more modern lease:

“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 § 235(f).”

If you read the first lease clause, you might believe that you have no right to have your immediate family join you in the apartment, much less to have a roommate. If you read the second clause, you are left wondering what the heck is “Real Property Law § 235(f).”

So, let us begin by looking at Real Property Law § 235(f), otherwise known as the “Roommate Law.” The Roommate Law tells us that any residential lease entered into by one tenant shall be construed to permit occupancy by four different categories of humans:

  1. The tenant
  2. Immediate family of the tenant
  3. One additional occupant, and
  4. Dependent children of the occupant

Confusing, right? Here’s an example:

A landlord rents to Mr. Smith, the tenant (Category 1). Mr. Smith moves his immediate family in, Mrs. Smith and their two children (Category 2). Then Mr. Smith decides that they need a roommate in order to make ends meet. So, Mr. Smith gets a roommate, Ms. Jones (Category 3). Ms. Jones has two dependent children (Category 4). Now you have three adults and four children living in an apartment, even though there is only one tenant on the lease.

See 1890 Adam Clayton Powell LLC v. Penant, 52 Misc.3d 76 (App. T. 1st  Dep’t 2016), where eviction allowed by the appellate court where, “three unrelated roommates resided with tenant in the subject four bedroom apartment, in violation of the lease provision limiting occupancy to ‘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 § 235–f’.”

No matter what the lease says, tenants are protected under the Roommate Law. If the lease says that only the tenant on the lease can live in the apartment, then that lease clause is void against public policy. RPL § 235(f)(2); Finnerty v. Westhoff, 18 Misc.3d 127(A) (App. T. 9th & 10th Dists. 2007). That means it can’t be enforced.

The Roommate Law goes on to tell us that any residential lease entered into by two or more tenants shall work the same way, provided that the total number of tenants and occupants, excluding occupants’ dependent children, does not exceed the number of tenants specified in the current lease, and that at least one tenant or tenant’s spouse occupies the premises as their primary residence.

So How Many People Can Be Crammed into An Apartment?

Pursuant to New York City’s Administrative Code Section 27-2075, there must be at least 80 square feet per person in an apartment. This goes for Multiple Dwellings and one- and two-family houses. Keep in mind that 80 square feet is not a lot. When measuring the available area, for purposes of this statute, the kitchen is counted, but bathrooms are excluded.

For every two people who may lawfully reside in an apartment, one child under four may also reside there. In any case where the birth of a child or its attainment of the age of four causes the number of persons or children to exceed the maximum occupancy permitted, such excess occupancy shall be permissible until one year after such event.

Some Other Requirements and Limitations on the Tenant Under the Roommate Law

There are a few other caveats for a tenant under the Roommate Law.

The tenant must inform the landlord of the name of any occupant within thirty days following the commencement of occupancy by such person or within thirty days following a request by the landlord.

A roommate does not acquire any right to continued occupancy, in the event that the tenant vacates the premises.

Nothing in the Roommate Law shall be construed as invalidating or impairing the operation of, or the right of a landlord to restrict occupancy in order to comply with federal, state or local laws, regulations, ordinances or codes.

Roommate, Guest, Or Subtenant?

There is a legal difference between a “roommate” and a “guest” and a “subtenant.” And because the Roommate Law only applies to roommates, you must be careful to know the difference.

A roommate is a person, other than a tenant or a member of a tenant’s immediate family, occupying a premises with the consent of the tenant or tenants. A roommate is a long-term co-occupant of an apartment with the lease-holder, with whom the entire living area is shared. The Roommate Law contemplates that the occupant resides in the apartment together with the tenant.

According to the recent case of OH 161st Street LLC v. Brooks, 2019 WL 848195 (Civ. Ct., Bronx Cnty. 2019), a roommate is:

“a person, other than a tenant or a member of a tenant’s immediate family, occupying a premises with the consent of the tenant or tenants…A roommate is a long-term co-occupant of an apartment with the lease-holder, with whom the entire living area is shared. (Brookford, LLC v. Penraat, 47 Misc. 3d 723, 733, 8 N.Y.S.3d 859 [Sup. Ct., N.Y. County 2014] [internal citations omitted].) “[The roommate law] contemplates that the occupant reside in the apartment together with the tenant.” (150 E. 3rd St. Assocs. v. Harper, 1990 NY App Div LEXIS 16874 [App Term, 1st Dept, April 25, 1990, No. 90-352].)”

A guest is someone who has temporarily received and entertained at one’s home, but who is not a regular occupant. The Brooks case goes on to define a guest as someone:

“who is temporarily received and entertained at one’s home but who is not a regular occupant.” (Hon. Gerald Lebovits, Roommates in New York Law, 34 NYSBA NY Real Property Law Journal 73 [Fall 2006], available at https://works.bepress.com/gerald_lebovits/73/ [last accessed Feb. 12, 2019]; see also Black’s Law Dictionary [10th ed 2014], guest) [Note: online version].)”

Moreover, your Airbnb guests are not your “roommates.” If you are interested in this topic, consider taking the Tenant Learning Platform class, “How to Do Airbnb Legally in Your Apartment”. See Goldstein v. Lipetz, 150 A.D.3d 562 (1st Dep’t 2017) (Initially, we are unanimous in rejecting defendant’s primary argument on this appeal, in which she contends that the 93 transient, short-term, paying guests she hosted over a year and a half were “roommates” within the purview of Real Property Law § 235–f and RSC 2525.7. Contrary to the view of Supreme Court, the record establishes that defendant’s “guests” were, as a matter of law, subtenants, and this matter is therefore governed by RSC 2525. 6…”)

Finally, subtenants are not roommates. If you, as the only tenant on the lease, have moved out of your apartment and left a “roommate” there, then your roommate is not a roommate, but a subtenant. See Offit, Fortgang & Komito v. Moshlak, 5 Misc.3d 130(A) (App. T. 1st Dep’t 2004) (“Significantly, tenant conceded at his deposition that he does not concurrently reside in the subject premises with his two “roommates,” spends the bulk of his time at his wife’s two bedroom apartment on East 14th Street and never obtained landlord’s written consent for the sublet.”) A tenant’s right to a sub-tenant is a whole other topic, and we’ll cover it soon, so check in before you list your place on craigslist.

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Can I Run a Business From My Apartment?

A shorter version of this article originally appeared in Bushwick Daily, where TLP Instructor Michelle Itkowitz is the “Tenant’s Rights Adviser”.

Hi, I’m Michelle Itkowitz, an instructor on the Tenant Learning Platform and Bushwick Daily’s Tenant’s Rights Adviser. This is the first article in a series that will bust some common myths contained in your apartment lease. As a New York City tenant, you have many rights. And no matter what your lease says, those rights cannot be taken away.

But how can you know which sections of your lease are binding and which are just…myths? This series will tackle your leasing issue one myth at a time. We’ll start with the section of your lease that says your apartment is for “living purposes only,” and what that means if you’d like to run a business in your apartment.

I. What Your Lease Says About Running a Business in Your Apartment

First, let us look at a few common lease clauses regarding the use of your apartment. Here’s one in a typical old-fashioned form lease:

“APARTMENT AND USE
…You shall use the Apartment for living purposes only.”

Here’s another clause; this one is located in a more modern lease, custom-made by a large landlord for a large new building:

“USE OF APARTMENT
The Apartment must be used only as a private residential apartment to live in and for no other reason. … Home office use is permitted, so long as such use does not violate applicable laws, and provided that no employees or clients use the Apartment with respect to such home office use. No auctions, sales, public gatherings, group tours or exhibitions are permitted. Any business meetings conducted by Tenant at the Building shall take place in the lounge in the Building and shall be subject to all provisions of this Lease relating to guests, visitors, meetings and conferences.”

But are you really prohibited from running your business in your apartment? And if you do run your business from your apartment, can you never have an employee come in to help you, or see a client, or customer? Bushwick is full of creators and office space is expensive. What should you do if you’re selling small batches of kombucha or hot sauce made in your living room? And what if you are using your living room for tarot card readings for select clients?

II. The NYC Zoning Resolution governs what kind of business you can conduct in your home.

A. Unpacking the Zoning Resolution

The law on this topic is contained in the New York City Zoning Resolution (“ZR”) , which is complicated, so we are going to read a little bit of the statute and then unpack it; bear with me.

ZR Art. II (Residence District Regulations) Ch. 2 (Use Regulations) § 22-11 (Use Group 1) and § 22-12 (Use Group 2) cover all residences. These Use Groups allow what is elsewhere defined in the ZR as “accessory uses”. At ZR § 12-10 “accessory use” is defined as, “…a use which is clearly incidental to, and customarily found in connection with, such principal use…” and accessory uses include “home occupations”.

In ZR § 12-10 home occupation is partially defined as follows:

“(a) A “home occupation” is an accessory use which:

(1) is clearly incidental to or secondary to the residential use of a dwelling unit or rooming unit;

(2) is carried on within a dwelling unit, rooming unit, …by one or more occupants of such dwelling unit or rooming unit, except that, in connection with the practice of a profession, one person not residing in such dwelling unit or rooming unit may be employed; and

(3) occupies not more than 25 percent of the total floor area of such dwelling unit or rooming unit and in no event more than 500 square feet of floor area.

(b) In connection with the operation of a home occupation, it shall not be permitted:

(1) to sell articles produced elsewhere than on the premises;

(2) to have exterior displays, or a display of goods visible from the outside;

(3) to store materials or products outside of a principal or accessory building or other structure;

(4) to display, in an R1 or R2 District, a nameplate or other sign except as permitted in connection with the practice of a profession;

(5) to make external structural alterations which are not customary for residences; or

(6) to produce offensive noise, vibration, smoke, dust or other particulate matter, odorous matter, heat, humidity, glare, or other objectionable effects.”

Therefore, the trick is figuring out what type of businesses and activities fit into the definition of permissible home occupation and which do not.

Your business use of your apartment must remain secondary to the residential use of the apartment. In other words, your apartment must be mainly for living in. Your business cannot occupy more than twenty-five percent of the apartment, and no more than 500 square feet. So, if you are running a company that makes biodegradable toothbrushes from your apartment, make sure you contain the business to only one-quarter of the apartment (which will be less than 500 sf, unless you live in a 2000+ sf apartment).

You cannot sell things that are not produced in the apartment. Nothing about your business can be visible from the outside of the apartment; you cannot put a sign up outside. Your business cannot create any disturbing noise, vibrations, or bad odors.

If the business is permissible, you can have one employee show up to the business you run in your apartment every day. So, don’t worry, you can have one paid employee for your business that places vending machines in airports, stocked with the work of that city’s local artists (this business sounds awesome, someone please start it in Bushwick).

I always found this section of the ZR pretty random, but certain home occupations are specifically permitted, and certain home occupations are specifically prohibited. In ZR § 12-10:

“(c) Home occupations include, but are not limited to:

• fine arts studios
• professional offices
• teaching of not more than four pupils simultaneously, or, in the case of musical instruction, of not more than a single pupil at a time

(d) However, home occupations shall not include:

• advertising or public relations agencies
• barber shops
• beauty parlors
• commercial stables or kennels
• depilatory, electrolysis or similar offices
• interior decorators’ offices or workshops
• ophthalmic dispensing
• pharmacy
• real estate or insurance offices
• stockbrokers’ offices
• veterinary medicine”

So, you can give three students knitting lessons, but only one student ukulele lessons, and not too loud! What gets tough is figuring out what is a “fine arts studio” or a “professional office,” for purposes of the law.

B. Cases interpreting the Zoning Resolution exemption for home occupations are highly fact specific.

Cases interpreting the Zoning Resolution exemption for home occupations are highly fact specific.

In Mason v. Department of Buildings of City of New York, 307 AD2d 94 (1st Dept 2003), the court upheld a finding by the New York City Department of Buildings that a tenant renting an apartment for use as a commercial recording studio was an invalid home occupation use. The court in Mason noted that the legislative thrust of the exemption conveys a goal of protecting artistic and professional uses, but not general commercial uses. Mason at 102.

In Dept. of Buildings v. Owners and Occupants of 86 Prospect Park Southwest, OATH Index N. 1900/06 (Jan. 19, 2007), aff’d, Comm’r Dec. (Mar. 14, 2007), a Board of Standards and Appeals case, the occupant of the premises ran a business:

“in the front portion of her home performing work as an organization development consultant. The building in question was a three-story building and the home office was situated in a room off the front entry of the house. The office contained three desks, one was used by an employee. [The occupant testified that she used] the office to research, design and develop materials for her company but did not see clients there. [At issue was whether her use of the premises violated the Zoning Resolution or is a] permissible home occupation accessory use. [The City argued that the tenant was] not operating a permissible home occupation because her office occupies more space than is permitted under the Zoning Resolution, and because “organizational development consultant” is not a permissible profession under the Zoning Resolution.”

Ultimately, after a seventeen-page decision, the Board of Standards and Appeals in 86 Prospect Park Southwest found that the use was permissible.

C. Does the Zoning Resolution supersede the lease between the parties?

So far, we have discussed how most residential leases prohibit you from running a business in your apartment. We have also discussed the fact that there are many permissible home occupations, according to the ZR. Thus, the question is – does the ZR allowance for home occupation in an apartment supersede the contract between the parties, i.e. the typical lease provision that says you must use your apartment for “residential purposes only”?

The ZR does not overtly state that it overcomes a lease between the parties or that any prohibition of a “home occupation” would be void against public policy. In fact, as per Park West Village v. Lewis, 62 N.Y.2d 431 (1984), New York State’s highest court has stated that a restrictive covenant limiting the tenant’s use and occupancy of an apartment exclusively to residential purpose is enforceable if violation of such clause results in a violation of a substantial obligation of the tenancy. In Park West Village the tenant was Rent Stabilized and conducted her entire psychotherapy practice from the apartment, seeing 15 to 22 patients at the apartment per week. The court in Park West Village upheld the termination of the tenancy. But we need to dig a little deeper here.

Even if the tenancy in Park West Village was not Rent Stabilized (and, therefore, subject to a great degree of scrutiny) and even if the lease did not contain a prohibition limiting tenant’s use to residential purposes only, the tenant in Park West would still have been in violation of the ZR, because her use of the apartment to conduct a busy, full-time psychotherapy practice was certainly not ancillary. If a tenant’s home occupation remains within the bounds of the ZR, then, among other things, the home occupation is ancillary (secondary), takes up less than twenty-five percent of the apartment, and doesn’t cause a nuisance to any other occupant of the building. If this is the case, then the home occupation does not transform the tenant’s occupancy into anything other than a residential occupancy.

In other words, having a home occupation in your apartment is occupying your apartment for living purposes only. See Besser v. Beckett, 253 A.D.2d 648 (1st Dept 1998) (“We reject defendant’s argument that the clause in plaintiff’s lease limiting his use of the apartment to ‘living purposes only’ necessarily mandates injunctive relief prohibiting any commercial use of the apartment to give voice lessons…musical instruction of not more than one pupil at a time appears to be a permitted ‘home occupation’ under New York City Zoning Resolution.”)

III. For home-based childcare, the legislature has preempted lease restrictions.

I include mention of the family day care cases because this is an area where a statute specifically preempts lease restrictions and allows this specific type of business to be run in an apartment if the tenant has obtained to relevant license therefor. See Marick Real Estate, LLC v. Ramirez, 11 Misc.3d 42 (AT 2nd , 2005) (Tenants’ use of apartment as family day care did not violate lease term prohibiting non-residential use.) and Carroll Street Properties v. Puente, 4 Misc.3d 896 (AT 2nd 2004) (Tenant’s use of second floor apartment in non-fireproof building as family day care home was not impermissible under Social Services provision governing child day care; tenant was registered family day care provider, and tenant had not violated any fire regulations or caused any violation to be placed against building.)

It is way beyond the scope of this already long article to fully address “family day care” programs as established at Social Services Law § 390. If you are planning, however, to care for children that are not your own in your apartment, make sure you look online and find resources explaining how to get your license to run a family day care in your apartment.

IV. Case law has recognized that to not allow a tenant to create art in her apartment is often against public policy.

Case law has also recognized that to not allow a tenant to create art in her apartment is often against public policy. A case that demonstrates this concept, and which also contains some very beautiful language, is Haberman v. Gotbaum, 182 Misc.2d 267 (NYC Civ. Ct. NY Cty. 1999), where a landlord tried and failed to evict a tenant for creating paintings in his apartment for commissions. Judge Ling-Cohen wrote:

“[P]ublic policy dictates that artists who create art in their homes are not engaged in a business use of the premises to warrant the extreme sanction of eviction…Many artists throughout history have used their homes as art studios including Chagall, Picasso, Giacometti, Duchamp and Georgia O’Keefe. From Beethoven composing symphonies in his rented room to Andy Warhol creating legendary pop art in his New York home/factory/studio, it is a tradition throughout the world. In fact, Van Gogh even made his own bedroom the subject of one of his most famous paintings. In the biography of New York painter Joan Mitchell, it is claimed that she rented a small house, between Bleecker and Seventh Avenue, where she lived and painted; later on, she moved to an apartment on Ninth Street in the Village, where she used the living room as a studio. If every New York artist who did artwork out of his or her home were able to be evicted, then the next Robert Rauschenberg or Andy Warhol (all New York artists who worked out of their home) may never have the opportunity to evolve and become a success.”

You can almost imagine the Judge’s words in Haberman v. Gotbaum being applied to modern-day start-up companies that people launch from their apartments. If Facebook was launched in a dorm room and Amazon in a garage, what next game-changing business might you invent from your apartment if your landlord leaves you alone to evolve?

V. Landlords suing tenants for running businesses in their apartments often also sue for nuisance.

When a landlord sues a tenant for running a business in her apartment, the landlord often sues the tenant, not only for a violation of a substantial obligation of her tenancy, but also for nuisance.

In 121 Irving MGM LLC v. Perez, 56 Misc.3d 694 (NYC Civ. Ct. Kings Cty. 2017) affirmed 63 Misc3d 157(A) (AT 2nd 2019), the appellate court sustained a tenant’s right to prepare food in her apartment for sale elsewhere. In 121 Irving v. Perez, there was evidence that a residential tenant used her rented apartment’s kitchen to prepare 12 to 15 meals a day, six days a week, for sale outside the apartment. “There was no evidence of [neighboring] tenant complaints. There is no showing of such things as increased traffic to the premises or a rodent or cockroach infestation, fires, floods or any other negative consequence that has resulted from respondent’s cooking which has lasted for the past 16 years.” There were no municipal violations issued against the premises. The trial court found that tenant was not operating a large business enterprise and instead she was an example of an enterprising immigrant mother helping to support her family by preparing home-cooked meals for workers at construction sites.

It is beyond the scope of this article to do a complete treatment of nuisance cases, but suffice it to say, that the business you run from your apartment should not bother anyone.

VI. Landlord Waiver to Running a Business in an Apartment

Moreover, there is another possible pathway by which a business conducted in your apartment can be adjudged legal. That is, if you have been running the business for a very long time and the landlord, who would otherwise have a legal objection to the use, waits too long and thereby waives her right to object.

In a recent Housing Court case, the court found that landlord waived its right to object to a karate school, which taught more than four students at one time, where the tenant proved that he operated the karate school for more than 40 years prior to the commencement of the proceeding. Sam and Joseph Sasson LLC v Guy, 2018 WL 6718878 (N.Y.City Civ.Ct.), 2018 N.Y. Slip Op. 33231(U). The floor plans, dated 1992, referred to a karate school. The owner testified that he was aware of the karate school perhaps as far back as the late 1990s. The court held that a “condition of such a [lengthy] duration gives rise to a presumption” that landlord and/or the prior owner acquiesced in the use.

A waiver defense, however, does not apply when the default is serious enough as to implicate public policy. Bel Air Leasing L.P. v. Kuperblum, 15 Misc 3d 986, 991 (Civ. Ct., Kings Co. 2007) (accepting rent after knowledge of illegal drug trade in apartment does not create waiver).

VII. Conclusion

More people than ever before are working from home. Just make sure that the business that you run from your apartment does not imperil your tenancy.

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When You Move In With Your Spouse to a Rent Stabilized Apartment

Tenant Question:

My husband is living in a Rent Stabilized apartment. I am not living with him; we are married but have had our twists and turns. Things are better now, and he wants me to move in with him. I really don’t want my name on the lease. If I end up moving out again, I don’t want to be legally responsible for the rent.

Can I live in my husband’s apartment without having my name on the lease? Do we have to get permission for the landlord for me to move in?

TLP Instructor Michelle’s Answer:

Yes, you can live in your husband’s apartment without either asking for the landlord’s permission or putting your name on the lease.

Under New York Real Property Law § 235(f), often referred to as the “Roommate Law”, a residential lease entered into by one tenant implicitly permits that tenant to share the apartment with either his/her immediate family or unrelated persons. This is true even if a residential lease says otherwise. As the tenant’s wife you are, obviously, immediate family.

Your husband might, however, want to ask the landlord for a key or key fob for you. In Akelius Real Estate Management LLC, New York State Division of Housing and Community Renewal (“DHCR”) Adm. Rev. Docket No. EX210010RO (5/18/17) LVT Number 27798, DHCR articulated its standard policy for key fobs systems, which requires that tenants may receive up to four additional key fobs or key-cards, at no charge, for the use of tenant’s employees or the tenant’s guests, who are defined as family members or friends who can be expected to visit on a regular basis.

Finally, if the apartment becomes your primary residence and if you and your husband decide that do wish to have your name on the lease, then the landlord MUST add you.

RSC 2522.5(g)(1) states:

“[T]he tenant shall have the right to have his or her spouse added to the lease or any renewal thereof as an additional tenant where said spouse resides in the housing accommodation as his or her primary residence.”

The landlord may not charge a vacancy increase for adding your name to the lease. See http://www.nyshcr.org/Rent/OpinionLetters/COL-1906.htm.

Thank you for this question. Finally, I am obligated to say that this answer is for general informational purposes only, does not constitute legal advice, and does not create an attorney and client relationship between you and I or between you and the Tenant Learning Platform.

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The Difference Between a Roommate and a Subtenant

Tenant Question:

I am the only person on my lease. I live in a 40-unit building. I want to take on a roommate for six months, for the fall school semester. The managing agent of my building insisted on meeting my roommate and having her fill out paperwork before he would issue her a key fob. When she went to the management office, she mentioned to someone who worked there that I might be away for most of the fall semester, while she is living in the apartment. The managing agent then refused to provide my prospective roommate with a key fob, saying that she was not really going to be my roommate, but my subtenant, and because I did not properly ask for permission to sublet, the landlord would not allow the sublet.

I am not going to be gone for the entire fall semester. I will be in and out of New York City and the apartment. The prospective roommate and I signed a one-page roommate agreement, which refers to the occupant as a roommate and just covers things like – we will each clean up after ourselves and we will each keep noise to a minimum. She is only paying half the rent, not all the rent.

Is the landlord violating my rights?

David

TLP Instructor Michelle’s Answer:

David,

The answer turns on whether the prospective occupant will be your roommate or your subtenant. There is a difference.

Under New York Real Property Law § 235(f), often referred to as the “Roommate Law”, a residential lease entered into by one tenant implicitly permits that tenant to share the apartment with either his/her immediate family or unrelated persons. This is true even if a residential lease says otherwise.

Any residential lease 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

On the other hand, Under New York Real Property Law 226-b, a tenant renting a residence in a building with four or more residential units has a right to sublease the apartment subject to the written consent of the landlord in advance of the subletting. Although the landlord is prohibited from unreasonably withholding consent, the devil is in the details with respect to RPL § 226-b(2). A tenant does indeed have a right to sublet. But it’s a lot of work to exercise that right. There is a very specific procedure that the tenant must follow, which requires a detailed and specific notice, including exhibiting the sublease to the landlord, and which can eat up about a month.

The Tenant Learning Platform plans to develop a class on roommates and sublets in the near future. For now, let us just talk briefly here about how you legally distinguish between a roommate and a subtenant.

The difference between a roommate (permissible under Real Property Law § 235–f without notice to or permission from a landlord) and a subtenant (whose occupancy is subject to the statutory provisions of Real Property Law § 226-b), generally turns on whether tenant contemporaneously occupies the apartment with a tenant. Fairmont Manor v. Verdicchio, August 18, 1995 at 21:3 (App. Term 1st Dept.), Kimmel v. Estate of Ling Kai K’Ung, N.Y.L.J. August 6, 1993 at 21:5 (App. Term 1st Dept. 1993), Glick v. Tafaghodi, N.Y.L.J. March 8, 1993 at 28:2 (App. Term 1st Dept.), 305 East 72nd Street Assocs. v. Menocal, N.Y.L.J. December 29, 1986, at 5:1 (App. Term 1st Dept.).

A sublease is a transfer by a tenant of part of his or her estate or interest in the whole, or in a part, of the leased premises. BLF Realty Holding Corp. v. Kasher, 299 A.D.2d 87, 94 n. 4 (1st Dept. 2002), appeal dismissed, 100 N.Y.2d 535 (2003). The presence of an unrelated individual in an apartment, coupled with the absence of the tenant of record from that apartment can lead to the conclusion that a sublet has occurred. 27 W. 84th St. Tenants Ass’n v. Knight, 11 Misc.3d 129(A)(App. Term 1st Dept. 2006).

It works in your favor that you did not sign a sublease with the prospective occupant, although that alone is not dispositive. If the prospective occupant were paying all the rent, as opposed to half the rent, then we would definitely be looking at a sublet; but you say she is only paying half the rent, so that also works in your favor.

You were not very clear in your question about how much you would be living at the apartment during the six months that the occupant will be there. If you are only going to be there for a few days, then this might be a sublet. If you are going to be there half the time, then this might be a roommate situation.

This is one of those situations that turns on the specific facts.

Thank you for this question. Finally, I am obligated to say that this answer is for general informational purposes only, does not constitute legal advice, and does not create an attorney and client relationship between you and me or between you and the Tenant Learning Platform.

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You Are a Tenant If You Paid the Rent in Your Own Name, Even If Only Your Ex-Boyfriend Is On the Lease

Tenant Question:

My ex-boyfriend moved into a Rent Stabilized apartment in 2005. I moved in with him 2010, and have lived in the apartment ever since. Only my ex-boyfriend’s name was never on the lease. My ex-boyfriend moved out in 2015. I started paying the rent in 2015 from a checking account in my name only. The landlord always accepted the rent from me, but never sent me a lease renewal.

Suddenly this month, the new property manager told me that the new owner of the building would not accept my check, since I was not the name on the last lease. I explained to him what I just explained to you. He said I have no right to succession of the apartment from my boyfriend because we were never married.

What are my rights?

Thank you,

Jessica

TLP Instructor Michelle’s Answer:

Jessica,

YOU are the Rent Stabilized tenant of that apartment.

You paid the rent in your own name for the apartment and the landlord accepted it for five years! That makes you the tenant of the apartment.

A contract creating the relation of landlord and tenant may be implied from the conduct of the parties. Hershkopf v. Engel, 142 N.Y.S. 344 (App. Term 1st 1913). No particular words are necessary to constitute a lease where it appears that it was the intention of one party to dispossess himself of the premises, and of the other to enter and occupy as the former himself had the right to do. Canton Steel Ceiling Co. v. Duffy Malt Whisky Co., 200 A.D. 306 (1st Dep’t 1922).

In New York City Hous. Auth. v Padmore, 140 Misc.2d 912 (NYC Civ. Ct. NY Cty. 1988) a landlord’s acceptance of rent payments from a deceased tenant’s employee created a direct landlord-tenant relationship between the employee and the landlord. In Rafolin Const. Co. v. Lippman, 116 Misc. 2d 926, 929 (NYC Civ. Ct. Qns. Co. 1982), a tenant’s boyfriend openly resided in the apartment for eleven years. Although some of the rent checks drawn on the boyfriend’s account may have been marked on behalf of his girlfriend, the tenant of record, other checks drawn on his account were simply marked “Rent Apt. 6V”. Landlord accepted those checks. The court found that this constituted a waiver on the part of an early owner of the building and that the waiver was binding upon the current owner of the building. The boyfriend was found to be a legal tenant in the apartment.

Thus, you are already the tenant because the landlord has been taking rent directly from you for five years! And a tenant in a Rent Stabilized apartment is…wait for it…a Rent Stabilized tenant. Gather all the cancelled checks cashed by the previous landlord, that will be your proof. You should file a claim with the New York State Division of Housing and Community Renewal for failure of the landlord to issue you a Rent Stabilized lease. Thus, we don’t even really need to get to the succession as a “non-traditional family member” issue.

Thank you for this question. Finally, I am obligated to say that this answer is for general informational purposes only, does not constitute legal advice, and does not create an attorney and client relationship between you and me or between you and the Tenant Learning Platform.

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Rent Stabilization is Not a Status That You and Your Landlord Can Just Contract Out of for Your Mutual Profit

Tenant Question:

I am subletting my Rent Stabilized apartment and I am overcharging my subtenant – I know it and my landlord knows it. My rent is close to the deregulation threshold amount. My landlord and I talked about it. I asked her if she will let me keep the apartment and continue to let me sublet it, if in exchange I let her raise my rent to the deregulation threshold and deregulate the apartment. Then, I will no longer be overcharging the subtenant because the unit will no longer be Rent Stabilized. I will still make a profit on the sub-rent even if the rent is raised to the threshold. The landlord liked this idea, but said that her lawyer told her this is not legal. What say you?

TLP Instructor Michelle’s Answer:

Of course, you may not…not not not… do that. I don’t even know where to start on this one. But let’s just keep it simple.

Rent Stabilization is not a status that you and your landlord can just contract out of for your mutual benefit. Rent Stabilization Code § 2520.13 (“An agreement by the tenant to waive the benefit of any provision of the RSL or this Code is void…”); Thornton v. Baron, 5 N.Y.3d 175 (2005) (“A lease provision purporting to exempt an apartment from rent regulation in exchange for an agreement not to use the apartment as a primary residence is against public policy and void.”); Drucker v. Mauro, 30 A.D.3d 37 (1st Dept 2006) (“It is well settled that the parties to a lease governing a rent-stabilized apartment cannot, by agreement, incorporate terms that compromise the integrity and enforcement of the Rent Stabilization Law. Any lease provision that subverts a protection afforded by the rent stabilization scheme is not merely voidable, but void …”); Draper v. Georgia Props., 94 N.Y.2d 809  (1999).

In any event (as if I need to say more), I cannot tell from your question whether you are still living in the apartment. If you really are subletting the apartment (meaning you are no longer living there) and you only want to hold on to the unit for the profit-margin on the sub-rent, then you are functioning as an absentee middleman for this apartment, and your sub-tenant is probably actually the real Rent Stabilized tenant of the apartment, and you are an illusory prime-tenant. Conason v. Megan Holding, LLC, 25 N.Y.3d 1 (2015). Not to mention that you can be held liable for the overcharge of your sub-tenant. Rent Stabilization Code § 2525.7 states:

“The rental amount that a tenant may charge [an occupant] shall not exceed such occupant’s proportionate share of the legal regulated rent charged to and paid by the tenant for the subject housing accommodation…The charging of a rental amount to an occupant that exceeds that occupant’s proportionate share shall be deemed to constitute a violation of this Code.”

It just does not work that way. Your Rent Stabilized status is not a commodity that you can bargain with; it is a legal status that you happen to be lucky enough to be subject to.

Thank you for this question. Finally, I am obligated to say that this answer is for general informational purposes only, does not constitute legal advice, and does not create an attorney and client relationship between you and me or between you and the Tenant Learning Platform.

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You Don’t Need to Chase Your Previous Landlord to Get a Rent Abatement – Get the Abatement from the Building’s New Owner!

Tenant’s Question:

I’m a tenant of a Rent Stabilized apartment in Brooklyn. The building was just sold and now I have a new landlord. The previous landlord of this building, however, was very bad.

I wish that I had sued my old landlord while he was still around. I want to find my previous landlord and go after that company for breach of warranty of habitability (i.e. no stove, gas turned off, bed bugs, broken flooring in apartment, no door chain etc.) and for a rent overcharge.

How do I sue my previous landlord?

TLP Instructor Michelle’s Answer:

You do not have to sue your previous landlord! Pursue those claims against your current landlord. It does not matter that the bad acts were committed by the previous landlord. Those claims – warranty of habitability and rent overcharge – they “travel with the land”. In other words, when the new owner bought the building, it bought the old owner’s liabilities.

If the old owner owed you a rent abatement for a breach of the warranty of habitability, then the new owner now owes you the same abatement. Dunbar Owner LLC v. Jones, 54 Misc.3d 134(A) (App. T. 1st Dept.; 1/25/17). If the old owner overcharged you, then it’s the new owner’s responsibility to pay you back the overcharge. Rent Stabilization Code § 2526.1 and Rent Stabilization Law § 26-516.

The law evolved this way so that tenants don’t need to chase previous landlords. Anyway, most buildings are owned by single-asset limited liability companies – the LLC is set up for the sole purpose of owning the building. Once the closing happens, the LLC (the previous landlord) has no assets for you to collect from anyway. That’s why you need to bring your claims against the current owner of the building.

Thank you for this question. Finally, I am obligated to say that this answer is for general informational purposes only, does not constitute legal advice, and does not create an attorney and client relationship between you and me or between you and the Tenant Learning Platform.