Posted by consigliere on January 25, 2002 at 13:15:36:
In Reply to: Re: roommate rules; you STILL DOESN'T GET IT posted by Harry on January 25, 2002 at 12:11:09:
The tenant has made it clear that the lease provides for occupancy by only the named tenant. This clause is illegal, and the roommate law would allow family members -- possibly a significant other -- plus ONE roommate and the dependant children of the roommate to live in the apartment.
The point about credit checks possibly being run on two of the "roommates" is a good one. But that would still allow only three adults in the apartment -- not five.
A no-waiver clause can be waived, but it usually requires a very long course of conduct on the part of the landlord.
The one and only tenant who signed the lease has all the liability in this situation. Before signing the lease, the tenant should have insisted that the clause limiting occupancy to the one named tenant be stricken, or better yet, insist that all three people sign the lease as named tenants, plus a provision allowing additional occupants.
: : Capital Holding Co. v Stavrolakes isn't just an Appellate Division decision, it's also a Court of Appeals decision -- 92 N.Y. 2d 1009, 684 N.Y.S.2d 477, 707 N.E.2d 432 (1998).
: : However, the case dealt with a rent controlled tenant without a lease. Therefore, there was nothing to limit the number of roommates, other than the overcrowding provisions of the Multiple Dwelling Law and the Housing Maintenace Code.
: : Roxborough Apts Corp. v Becker dealt with a rent stabilized tenant who had a lease that didn't seem to limit the number of roommates, according to the housing court. Unfortunately, the Appellate Term reversed the housing court decision, and the case ended with the Appellate Term decision -- 723 N.Y.S.2d 817, 187 Misc. 2d 604 (2000).
: : :
: : : The original poster had a lease which says (maybe) "The lease does state
: : : however that only persons named on it can occupy the apt"
: You're acting as if YOU KNOW exactly what is written in the lease: you don't. Since the landlord can't evict based on the Roommate Law itself, the tenant would have to be sued for violating the lease.
: Furthermore, her landlord may have waived the restriction (if one even exists) by knowingly renting to her plus two roommates. Especially if landlord or agent ran credit checks on more than one person.
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