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If a Tenant has a Two Bedroom Apartment and Rents out the Second Bedroom to Various People Throughout the Year but Still Resides in the Other Bedroom - Can the Landlord Evict the Tenant?

December 10, 2013 -- The following question was recently presented to Michelle Maratto by someone who viewed her Continuing Legal Education seminar of Landlord and Tenant Law.  What's funny is that Michelle taught this course over five years ago, and people still watch it, they still love it, they still email her questions!  And she still takes the time to answer every one...

Question:  If a tenant has a two bedroom apartment and rents out the second bedroom to various people throughout the year but still resides in the other bedroom - can the landlord evict the tenant?

Answer:  Yes.  The landlord can evict the tenant for renting the second bedroom of his or her apartment to various people throughout the year.

Roommate Law

I would start my analysis by looking at the Roommate Law.  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 “for reasons of economy, safety and companionship.” RPL § 235(f)-3.  This is true even if the lease says otherwise.  But your series of renters of the second bedroom does not sound like roommates.  Rather, it sounds like a this is a series of subtenants.  So let’s look at what the law has to say about subtenants.

Subletting a Residential Apartment

The tenant needs the written consent of the landlord BEFORE a sublet can begin.  That approval can take as long as 40 days to come, pursuant to Real Property Law § 226-b.  Although the landlord may not unreasonably withhold consent, the 40 days advance permission element of the law makes subletting difficult.  I seldom, if ever, see tenants complying with it.

RPL § 226-b. Right to sublease or assign:
1. Unless a greater right to assign is conferred by the lease, a tenant renting a residence may not assign his lease without the written consent of the owner, which consent may be unconditionally withheld without cause provided that the owner shall release the tenant from the lease upon request of the tenant upon thirty days notice if the owner unreasonably withholds consent which release shall be the sole remedy of the tenant. If the owner reasonably withholds consent, there shall be no assignment and the tenant shall not be released from the lease.
2. (a) A tenant renting a residence pursuant to an existing lease in a dwelling having four or more residential units shall have the right to sublease his premises subject to the written consent of the landlord in advance of the subletting. Such consent shall not be unreasonably withheld.
(b) The tenant shall inform the landlord of his intent to sublease by mailing a notice of such intent by certified mail, return receipt requested. Such request shall be accompanied by the following information: (i) the term of the sublease, (ii) the name of the proposed sublessee, (iii) the business and permanent home address of the proposed sublessee, (iv) the tenant's reason for subletting, (v) the tenant's address for the term of the sublease, (vi) the written consent of any cotenant or guarantor of the lease, and (vii) a copy of the proposed sublease, to which a copy of the tenant's lease shall be attached if available, acknowledged by the tenant and proposed subtenant as being a true copy of such sublease.
(c) Within ten days after the mailing of such request, the landlord may ask the tenant for additional information as will enable the landlord to determine if rejection of such request shall be unreasonable. Any such request for additional information shall not be unduly burdensome. Within thirty days after the mailing of the request for consent, or of the additional information reasonably asked for by the landlord, whichever is later, the landlord shall send a notice to the tenant of his consent or, if he does not consent, his reasons therefor. Landlord's failure to send such a notice shall be deemed to be a consent to the proposed subletting. If the landlord consents, the premises may be sublet in accordance with the request, but the tenant thereunder, shall nevertheless remain liable for the performance of tenant's obligations under said lease. If the landlord reasonably withholds consent, there shall be no subletting and the tenant shall not be released from the lease. If the landlord unreasonably withholds consent, the tenant may sublet in accordance with the request and may recover the costs of the proceeding and attorneys fees if it is found that the owner acted in bad faith by withholding consent.
6. Any provision of a lease or rental agreement purporting to waive a provision of this section is null and void.

Subletting in a Rent Stabilized Apartment

Moreover, this kind of thing is specifically prohibited in the Rent Stabilization Law (if your tenant is Rent Stabilized).  RSC 2525.6 regards subletting and assignment of Rent Stabilized apartments and it states the following:

Subletting; assignment
(a) Housing accommodations subject to this Code rented by a tenant pursuant to an existing lease may be sublet in accordance with the provisions, and subject to the limitations, of section 226-b of the Real Property Law, provided that the additional provisions of this section are complied with and provided further that the tenant can establish that at all times he or she has maintained the housing accommodation as his or her primary residence and intends to occupy it as such at the expiration of the sublease.
(b) The rental charged to the subtenant by the tenant shall not exceed the legal regulated rent plus no more than a 10-percent surcharge payable to the tenant if the housing accommodation is sublet fully furnished. Where a tenant violates the provisions of this subdivision, the subtenant shall be entitled to treble damages.
(c) The tenant may not sublet a housing accommodation for more than a total of two years, including the term of the proposed sublease, out of the four-year period preceding the termination date of the proposed sublease. ***
(f) An owner may terminate the tenancy of a tenant who sublets contrary to the terms of this section, …, but no action or proceeding to terminate tenancy based upon the nonprimary residence of a tenant may be commenced prior to the expiration date of his or her lease.

Short Term Rentals Prohibited

Finally, no discussion of this issue would be complete without bringing up the “Air B&B” situation in New York City.  In many cities across the country, including New York, offering your home for rent to the short-term vacation traveler is illegal.  Effective May 1, 2011, New York State made it illegal to rent or sublease any private apartment for a term of less than 30 days. 

Multiple Dwelling Law § 4(8): 

8. a. A “class A” multiple dwelling is a multiple dwelling that is occupied for permanent residence purposes. This class shall include tenements, flat houses, maisonette apartments, apartment houses, apartment hotels, bachelor apartments, studio apartments, duplex apartments, kitchenette apartments, garden-type maisonette dwelling projects, and all other multiple dwellings except class B multiple dwellings. A class A multiple dwelling shall only be used for permanent residence purposes. For the purposes of this definition, “permanent residence purposes” shall consist of occupancy of a dwelling unit by the same natural person or family for thirty consecutive days or more and a person or family so occupying a dwelling unit shall be referred to herein as the permanent occupants of such dwelling unit. The following uses of a dwelling unit by the permanent occupants thereof shall not be deemed to be inconsistent with the occupancy of such dwelling unit for permanent residence purposes:
(1)(A) occupancy of such dwelling unit for fewer than thirty consecutive days by other natural persons living within the household of the permanent occupant such as house guests or lawful boarders, roomers or lodgers; or
(B) incidental and occasional occupancy of such dwelling unit for fewer than thirty consecutive days by other natural persons when the permanent occupants are temporarily absent for personal reasons such as vacation or medical treatment, provided that there is no monetary compensation paid to the permanent occupants for such occupancy.
Supporters of the law characterize short term rentals (units rented for fewer than 30 days) as "illegal hotels" which create nuisance and security issues for regular tenants in the building.  Supporters also point to decreased hotel tax revenue.   See Dexter 345 Inc. v. Cuomo, 663 F.3d 59 (2011).  Some hosts learn the rules the hard way.  The New York Times reported on one renter who offered his home as a "Air B&B" for three nights, only to be surprised by $40,000 in fines when he returned to his home.

Suing the Tenant for the Second Bedroom Renters

If the apartment is Rent Stabilized, landlord would follow the dictates of Rent Stabilization Code § 2525.6, § 2524.3(h), and § 2524.  If the apartment is not Rent Stabilized, landlord can default the tenant pursuant to the subletting sections of the lease and the clause of the lease that says that the tenant shall occupy the apartment lawfully. 

Proof, however, is another matter.  For that you might want to utilize cameras or e-discovery (having the court order that the tenant’s email gets look at it – where he is booking these revolving second-bedroom renters).  Also - check out my e-book on High Tech (But Not Necessarily Expensive) Ways to Prove Difficult Landlord and Tenant Cases

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