Q: I am a real estate salesperson and I am representing the owner/landlord of a residential building who, in order to prevent overcrowding, would like to prevent a couple and their teenage son from moving into an apartment containing 400 square feet, excluding hallways, bathrooms, and foyers. May the owner/landlord restrict their occupancy in this manner?
A: No, in New York City landlords and owners must comply with the occupancy standard set by the New York City Housing Maintenance Code ("the Code"). According to the Code, "every person occupying an apartment in a class A or class B multiple dwelling or in a tenant-occupied apartment in a one or two family dwelling," must have a livable area of at least 80 square feet. Additionally, "for every two persons who may lawfully occupy an apartment, one child under four may also reside therein, except that a child under four is permitted in an apartment lawfully occupied by one person."
In order to calculate the maximum number of people who may occupy an apartment, you must divide "the total livable floor area of the apartment by 80 square feet." Hallways, bathrooms, water closets, and foyers do not count as "livable floor area" for purposes of this calculation.
Consequently, the landlord must permit the couple and their teenage son to occupy the apartment because each occupant would have at least 80 square feet of livable space (3 persons x 80 square feet = 240 square feet of minimum space and the apartment has 400 square feet).
The Legal Line Question by:
Neil B. Garfinkel
REBNY Broker Counsel
Partner-in-charge of real estate and banking practices at Abrams Garfinkel Margolis Bergson, LLP