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30 Sep 2016
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Illegal Tenants:

In New York City, illegal leases and sublets are as common as Dunkin’ Donuts in Massachusetts.  A co-op’s proprietary lease can flat out forbid sublets of any kind.  It is also common for a proprietary lease to require a potential subtenant to interview with the board, or for the shareholder to wait for a predetermined period after purchase before considering a sublet.  Regardless of the type of restriction in the proprietary lease, if a shareholder violates it, the board can bring an action to evict both the owner of the premises and the subtenant in housing court.

While it doesn’t happen often, some shareholders in co-ops are even barred from allowing their adult children to move back in.  Some co-ops also block the right to automatic succession to shares or to the apartment.  There is, however, a slight work around courtesy of New York law.  Under the roommate law, which does apply to co-ops, a shareholder of record is allowed to have an additional occupant, and their minor children, live with them.  A shareholder is allowed to rent out a room of his/her unit to another person.  The caveat is that the shareholder must also be living there.  If the owner of the unit has a roommate and moves out leaving the roommate to occupy the unit alone, the roommate’s occupancy is converted into an illegal sublet.  Tenants often “get away” with doing this, however many co-ops do an annual inspection.

With condos, the individual units are structured with every apartment considered a separate property. While it is more difficult for condos to restrict a unit-owner’s lease/sublease of their own apartment, they still try.  The condo association can set rules and guidelines for tenant behavior and property use, and in more recent years, some condo agreements require board approval for tenants and subtenants.

When addressing an illegal sublet, there’s a requirement for the counsel to send a letter to the owner of record to cease and desist. And if they fail to do that, then their only recourse at that point is to go into court.  There are two ways of going into court. 1.) Go into housing court to evict the illegal tenant.  2.) Go into Supreme Court and force the sale of the unit for a violation of the condo or co-op agreement. These options can take much longer than most people would realize, and a victory for a co-op or condo building is difficult at best.  If a reasonable agreement cannot be attained before court intervention, its best to consult with legal counsel to determine what steps should be taken to attain the desired end goal.

 

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