By Edward T. Braverman

You're on the board admissions committee. You've spent countless hours reviewing Steve Ripper's application. You've interviews Mr. and Mrs. Ripper. Their financials are in order. They seem to be a great couple. You approve them. The full board approves them. They move in. And then Steve's violent-tempered brother, Jack takes up occupancy in the apartment and Steve and his wife move out.

What to do? The apartment corporation sends a notice to cure or face eviction for having an unauthorized occupant. But, then, Steve points our that his proprietary lease says that the apartment can be used by "the lessee, the family, employees, and servants of the lessee." Steve argues that his brother Jack (a family member) falls within use provision of your proprietary lease. It doesn't matter that Steve and his immediate family have moved out of the place because of his brother's violent temper.

In one way or another, the forgoing scenario has taken place hundreds of times within the New York cooperative community, So what can be done? The very heart of cooperative ownership is the apartment corporation's ability to restrict the use and occupancy of an apartment. New York's highest court has confirmed the right of a cooperative housing corporation to admit only those individuals with whom the existing residents wish to share their homes.

There is, however, this "family" problem lurking in the use clause of many proprietary leases. Several variations are employed in almost every lease currently in existence. Basically, the language says that the apartment cannot be occupied for any purpose other than as a private dwelling for "the lessee, the family, employees, and servants of the lessee." In addition, your proprietary lease may contain an additional clause permitting "guests" to occupy the unit for up to 30 days without obtaining approval.

The cases interpreting the provision are sparse and lack appellate authority. However, some lower court cases have focused on the family, employees, and servants provision and it s first cousin, the conjunctive clause ("for the lessee and the family, employees, and servants of the lessee"). In that case, the word "and" takes the place of the comma.

Court opinions have indicated that it was the intent of the corporation for the lessee to be in occupancy, together with his family, when the word "and" is used. However, when a comma is used after the word lessee, these same courts have held that any of the enumerated parties may occupy the apartment without the lessee. Therefor, it is a good idea to have your lease modified to make it abundantly clear that any enumerated family member of the lessee can only be in residence when the approved lessee himself is in occupancy. The two areas to look at involve guests and roommates.

The Guest. The co-op should seriously consider some type of proprietary lease restriction for guests who regularly reside in an apartment for more than a month when the named tenant-shareholder is not in occupancy. It was never the intent of the co-op to permit an apartment to be used as a bed-and-breakfast or other type of short-term residential facility for guests or other invitees of the named tenant-shareholder.

The Roommate. The right of the cooperative housing corporation to restrict the occupancy of each of its apartments has been partially eroded by the New York State Legislature. This encroachment upon the corporation's right to control the occupancy of an apartment is commonly known as the "Roommate Law." First enacted in 1983, and amended several times thereafter, the rule states that it is unlawful for a landlord to restrict occupancy of a residential premises, by express lease terms or otherwise, to a "tenant or the tenant's immediate family." Such a provision in a rental agreement would be unenforceable. This provision has been held to applicable to co-ops and their tenant-shareholders.

The statue provides that when a rental agreement is with one tenant, he shall be permitted one additional occupant and the dependent children of the occupant in residence. If the rental agreement is entered into with two or more tenants, the lease shall permit occupancy by multiple occupants and their dependent children, providing the total number of tenants and occupants (excluding occupants' dependent children) does not exceed the number of tenants specified in the lease.

In both instances under the Roommate Law, the tenant or the tenant's spouse, must occupy the premises as a primary residence. Since the Roommate Law has been held to apply to cooperative housing, no current lease or amendment can eliminate the right of a tenant-shareholder to have a roommate (same sex or different sex) reside within the cooperative apartment, provided the named lessee maintains his apartment as his primary residence.

All things considered, a cooperative housing corporation, through inadvertence or inattention, should not permit the occupancy of its apartments by other than those who have been interviewed and approved by the board. This protection can easily be accomplished by each building's counsel, through minor modification of the proprietary lease. Such modification would mandate that a family member and/or employee could only occupy the apartment when the named tenant-shareholder is present.

The board of directors should also review the cooperative's bylaws to determine if a similar and mirror provision is required in such document. Even with such change, the tenant-shareholder has the right to secure a roommate for his apartment, with or without the consent of the board. This right is limited by the statutory mandate that the tenant-shareholder maintains his apartment as his primary residence.

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