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Can A Husband And Wife Have A Nanny or Boarder Under The Roommate Law?

Posted by Mark Smith on September 24, 1999 at 16:39:25:

In a previous episode of "I Hate Mark Smith's Guts," the otherwise-enchanting Anna said:

The 'law' for roommates when two or more tenants sign the lease is still fuzzy: someone will have to lose a case and take appeals to clarify the language of RPL 235-f (which is what Stavrolakes did). Most people ignore the words "the NUMBER of tenants SPECIFIED in the lease" in 235-f(4), replacing them in their minds with "the number of tenants NAMED in the lease". This is an absurd interpretation: think about this: family with 2 kids moves into 'classic six' (2 beds, living, dining, kitchen, AND 'maid's room' with its own bath). If husband only signs lease: they can fill the maid's room with a maid or nanny/au pair or boarder, but if both husband and wife sign the lease, they can get evicted for having a nanny? Absurd.


The roommate law itself may have an answer to Anna's question, because Real Property Law 235-f(4) states:

Any lease or rental agreement for residential premises entered into by two or more tenants shall be construed to permit occupancy by tenants, immediate family of tenants, occupants and dependent children of occupants; 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 or rental agreement, and that at least one tenant or a tenants' [sic] spouse occupies the premises as his primary residence.

Therefore, the roommate law recognizes the special relationship between husband and wife. Furthermore, in real estate matters, a husband and wife are not joint tenants or tenants-in-common, but tenants by the entirety. I suspect that the courts will ultimately allow a husband and wife who both are named in a lease to have a maid, au pair/nanny, or roommate. Whether this would be extended to a non-traditional family is yet another matter.

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