If You Already Have a Roommate Can You Still Have Your Girlfriend Move In
My question involves landlord-tenant law in the State of New York in the City of New York.
My girlfriend and I are cotenants on a lease of a 2-bedroom apartment in New York City. My girlfriend does not currently reside in the apartment; and a roommate, who is not on the lease, does reside in the apartment and has been doing so for over thirty days. I also currently reside in the apartment. My girlfriend will be returning to live with me in a few weeks.
My girlfriend is an unemployed PhD student and has no money to help with rent. Rent is obviously very expensive and I barely made the income cutoff for getting the apartment, which was the cheapest apartment I was able to find. Thus, I would like to continue to have a roommate when my girlfriend returns to live with me. I am writing this post in order to better understand my rights in New York City to continue to have a roommate once my girlfriend returns.
The two parts of my lease relevant to this question are as follows:
"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." This is a very standard clause in NYC leases. Call it the Standard Clause.
The second is a rider which reads: "Tenant shall not use the Unit as a hotel suite, transient guest, apartment swap, bed and breakfast, or any other form of temporary lodging for any guests "e.g. AirBnB"). Tenant is not allowed to sub-let the property for any reason whatsoever. A breach of the foregoing covenant shall be material default of the lease and permit Landlord to immediately declare the lease terminated and to pursue any and all remedies and damages permissible under the law against Tenant of such unauthorized, third party invitee." Call it the Rider.
My understanding is that the most relevant statute is the Real Property Law 235-f, which can be found here:
http://codes.findlaw.com/ny/real-pro...ect-235-f.html
In short, this statute prohibits landlords in NYC from preventing tenants from having as many tenants and occupants as there are people on the lease. Thus I am in my legal rights to have a roommate now while my girlfriend is not living with me. Further, as my roommate is not a temporary guest, having stayed for longer than thirty days, I believe that my having a roommate would also not be in violation of the Rider.
Here is what I understand to be the most relevant case law for interpreting the Standard Clause in light of Real Property Law 235-f:
1. http://caselaw.findlaw.com/ny-suprem...n/1348313.html
2. http://caselaw.findlaw.com/ny-civil-court/1147555.html
3. http://tenant.net/Court/Hcourt/archive/2000/dec00.html (see "Roxborough Apartments v Becker")
4. http://caselaw.findlaw.com/ny-suprem...n/1245301.html
In short, although the 235-f is not interpreted by the NY Supreme Court as in itself placing any limit on tenants' rights to have roommates; in the case (4) above, the NY Supreme Court found that the Standard Clause should be construed as limiting the tenant's rights to have a roommate only to the minimum rights granted by the roommate law. Thus if there is only a single tenant, then if your lease has that standard clause, you can only have one additional roommate given 235-f(3). Presumably an extension of this ruling would be that if there are two people on the lease, then, given 235-f(4), these two people cannot both occupy the apartment and also have an additional roommate.
This is frustrating to me, as my reading of the standard clause does not see it as limiting (I fully agree with the dissent in the lower court ruling discussed in case (3)). This is also what I thought when I read through the lease for the first time. But there’s nothing I can do about that.
My question is: does the fact that my girlfriend is my spouse have any bearing on this? If she were not on the lease, then she would qualify as immediate family according to 235-f. The “immediate family” clause of 235-f is typically understood to include one’s spouse, and my girlfriend qualifies as my spouse in the sense that she qualifies as my domestic partner according to NYC’s understanding of domestic partner. Thus if she were not on the lease, then she would not count as an occupant despite living in my apartment and thus 235-f would permit me to have an additional occupant living in my apartment. Furthermore, she has no income and the apartment was granted to us solely on the basis of my income and credit history; in other words, the landlord would have given me the lease if my girlfriend were not on it. Since she is on the lease, she appears to count as a tenant despite being an immediate family member, and thus this appears to limit my right to have an additional roommate given the Standard Clause and 235-f(4). But I am not completely sure of this; and in fact, there does not appear to be any case law that discusses my precise situation.
Another possibility I considered is the possibility that my girlfriend could request permission to assign her lease to either me or to my roommate, or to request permission to sublet to either me or to another tenant. The relevant statute for this is here:
http://codes.findlaw.com/ny/real-pro...ect-226-b.html
The idea for my girlfriend to sublet to me does not appear to work, since she would still qualify as a tenant in that case. Secondly, one ground for reasonable refusal for a sublet appears to be that you’re not leaving the apartment (although I’m not sure of this). However, she could request to assign the lease to me. Then the landlord has to either unreasonably or reasonably refuse the assignment. If the landlord unreasonably refuses, then given 226-b, my girlfriend’s tenancy would be terminated within thirty days of the unreasonable refusal, which is precisely what I want. I don’t see how the landlord could reasonably refuse the request, but I haven’t looked at the case law surrounding this.
I agree that I was very stupid to allow my girlfriend to co-sign the lease with me.
Obviously I will be contacting an experienced attorney as well.
Thank you for any help you can provide!
Re: If You Already Have a Roommate Can You Still Have Your Girlfriend Move In
If you marry your girlfriend, she becomes a family member. If you don't want to marry her, she would be tantamount to a second roommate.
A domestic partnership is a legal relationship, requiring registration with the state. It's not status that a girlfriend gains simply by dating you.
Re: If You Already Have a Roommate Can You Still Have Your Girlfriend Move In
we are domestic partners. What is in dispute is not whether she qualifies as an immediate family member but whether she counts towards the total number of tenants and occupants for the purposes of the roommate law given that she is family.
The other issue is that, if she would still count towards the total number of tenants ajd occupants, whether the landlord would have reasonable grounds to refuse my girlfriends written request to assign her holding of the lease either to me or to the roommate.
Re: If You Already Have a Roommate Can You Still Have Your Girlfriend Move In
Yes or no.
Have you gone to city hall, registered as domestic partners, and been given a certificate?
Re: If You Already Have a Roommate Can You Still Have Your Girlfriend Move In
Yes, we have been issued a domestic partnership certificate by the City of New York.