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Knudsen Reboot: Understanding New York's Roommate Act and Tenant Rights

This article explores the implications of New York's Roommate Act (Real Property Law §235-f) on tenant rights and the ability of landlords to exclude registered sex offenders as roommates. It also discusses tenant remedies for undesirable neighbors and the question of fairness in treating tenants differently from condo owners.

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Knudsen Reboot: Understanding New York's Roommate Act and Tenant Rights

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  1. PROPERTY A SLIDES 2-28-17 NATIONAL TOOTH FAIRY DAY

  2. More Music to Accompany Knudsen:Alicia Keys, As I Am (2007) Warning: Make-Up Class This Friday Same Bat Time Same Bat Classroom We’ll Start Chapter Three 1st Window for Submitting Sample Exam Answers Opens Tomorrow & Runs Until Wed. 3/15 @ 5pm See Instructions on Course Page; E-Mail if Qs

  3. OLYMPIC: Tempest Argument A1: -- Errors in Notice to Evict for Rent in Materials -- I’ll Post Corrected Version on Course Page -- Thursday We’ll Discuss Both Printed & Corrected Versions EEL GLACIER

  4. Knudsen Rebootbrought to you by the Powerful PATIENT Persistence of Parker Pouser

  5. Knudsen Reboot • “Real Property Law §235-f prohibits a landlord from removing a registered sex offender either as a guest or occupant of a tenant’s leasehold as has occurred in this case based solely on that designation….” (P629 5th ¶)

  6. Knudsen Reboot • “Real Property Law §235-f prohibits a landlord from removing a registered sex offender either as a guest or occupant of a tenant’s leasehold as has occurred in this case based solely on that designation….” (P629 5th ¶) • “Real Property Law §235-f = N.Y. “Roommate Act” (1983)

  7. Knudsen Reboot: “Roommate Act” N.Y. Real Property Law §235-f • Tenants have a non-waivable right to allow (at least) one person of their choice (in addition to members of their immediate family) to live with them. • Landlords cannot prevent this, exclude the chosen roommate, or require any kind of screening. • Presumably seen as OK because tenant satisfies financial and other requirements for the tenancy and because the tenant would be responsible for bad acts of the roommate while living in the unit.

  8. Knudsen Reboot: “Roommate Act” N.Y. Real Property Law §235-f • Tenants have a non-waivable right to allow (at least) one person of their choice to live with them. • Landlords cannot prevent this, exclude/evict the chosen roommate, or require any kind of screening. • Only limits noted in statute: • Tenant or tenant’s spouse must use unit as primary residence. • Lease can provide limit on total number of people living in unit. • Tenant must notify landlord of roommate’s occupancy • Ldld can “restrict occupancy in order to comply with federal, state or local laws, regulations, ordinances or codes.”

  9. Knudsen Reboot: “Roommate Act” N.Y. Real Property Law §235-f • Tenants have a non-waivable right to allow (at least) one person of their choice to live with them. • Landlords cannot prevent this, exclude/evict the chosen roommate, or require any kind of screening. • Legislative History: Trying, in light of difficulty finding affordable housing, to protect tenants’ financial interests and desire for companionship. • Thus, unlimited definition of occupant: “a person, other than a tenant or a member of a tenant's immediate family, occupying a premises with the consent of the tenant or tenants.” • Protects in 1983, unmarried heterosexual cohabitants and same-sex partners

  10. Knudsen Reboot: “Roommate Act” N.Y. Real Property Law §235-f • Court holds that “§235-f prohibits a landlord from removing a registered sex offender either as a guest or occupant of a tenant’s leasehold as has occurred in this case based solely on that designation….” • Notes that statute suggests landlord could exclude if state or local law barred sex offenders from living in that place (b/c near school, etc.) (not true in case). • Reasonable interpretation of very broad pro-tenant statute. • BUT legal category of sex offender didn’t exist in 1983 • No subsequent court or legislative act has overruled/amended

  11. Knudsen Reboot:Revisiting Points from Yesterday(I’ll Fix Yesterday’s Slides) • No N.Y. Statute or Policy Guaranteeing Housing for Sex Offenders • Ldlds should be able to exclude Sex Offenders as Tenants • Points about IWH/Constructive Eviction Still Apply: Ldld has Breached No Duty to Tnts b/c Can’t Exclude Sex Offenders as Roommates

  12. Knudsen Reboot&Tenant Remedies for Undesirable Neighbors Fairness/Public Policy • If Ldld could not prevent the Sex Offender from living in the building, is it fair to allow Tnt to terminate the lease? • Neuman Point After Class: Tnt Safety Interest > Ldld $$$ Interest • BUT if (as seems likely) TNT moves out regardless of outcome of case, then Q is just who bears burden of cost of remainder of lease • Maybe easier for Ldlds to find replacement tenant to limit damages. • Less likely to be catastrophic loss for Ldld,s who can spread cost of risk over all Tnts by increasing rent. • BUT Literal Language of Lease Puts Burden on Tnt • BUT Very Amorphous Theory of Case  Lot of Litigation

  13. Knudsen Reboot&Tenant Remedies for Undesirable Neighbors Fairness/Public Policy • Casebook asks about fairness of treating tenants better than condo owners. • Quick check suggests roommate law doesn’t apply. • If that’s true, condo assn. could ban sex offenders from residence in condo units. QUESTIONS on Reboot?

  14. Knudsen & Tenant Remedies for Undesirable Neighbors (3) Scope of the Remedy (Very Testable!) • Could a tenant invoke this remedy if … • No children? Male children if victims all female? • Resided on a Different Floor? • BIG LINE-DRAWING PROBLEMS

  15. ACADIA: Knudsen & DQ2.17 Acadia Sunrise

  16. Knudsen & Tenant Remedies for Undesirable Neighbors (ACADIA) (3) Scope of the Remedy (Very Testable!) • DQ2.17: What Other Types of “Undesirable” Neighbors Might Be Covered by the Reasoning in Knudsen?

  17. Knudsen & Tenant Remedies for Undesirable Neighbors (ACADIA) (3) Scope of the Remedy (Very Testable!) • DQ2.17: What Other Types of “Undesirable” Neighbors Might Be Covered by the Reasoning in Knudsen? • I tested last spring in Rev Prob 2G(DF Next Week) • NOTE CONCERN: Early Alabama Constructive Eviction Case

  18. BIG PICTURE: N.Y. “Roommate Act” • I’ll Put Statute into Info Memo on Chapter 2. You’ll Be Responsible For Recognizing and Understanding It. E-Mail Me if Qs. • Can View as Limit on Ldld’s Right to Exclude that Nicely Ties Together Ideas from Whole Course So Far: • Protecting Ordinary Relationships of Tenants (cf. Shack) • Protecting Strong Public Policy in Tenants Ability to Afford Housing (cf. Schmid/JMB) • Huge Limit on Ldld’s Normal Right to Select /Evict Tenants (cf. Rev Prob 2B & Funk) • Implicates Habitability Issues (Knudsen) • Useful Review Exercise: Imagine a state Supreme Court (like NJ) considering whether to adopt a common law version of Roommate Act. What arguments could you make from course materials?

  19. EVERGLADES: Review Problem 2L(b)Anti-Discrimination EGRET IN MANGROVE SWAMP

  20. Review Problem 2L(b)(S59-60) • EVERGLADES: Anti-Discrimination Claim • B may claim that S Rejected B b/c he believed B was Muslim or Arab • Evidence Supporting Claim? • Evidence Refuting Claim? • Other Evidence You Might Look For? • Which Seems Stronger and Why?

  21. BADLANDS: Review Problem 2L(b)Reasonableness of Refusing Transfer NORBECK PASS

  22. Review Problem 2L(b)(S59-60) • BADLANDS: Reasonableness Claim • Lease Requires Consent to Transfer “Not Be Unreasonably Withheld” (So No Need to Check if State Implies “Reasonableness”) • Clearly S has Legitimate Interest in Whether B Can Afford to Pay Rent • Why Might Rejection Here Be Unreasonable Anyway?

  23. Review Problem 2L(b)(S59-60) • BADLANDS: Reasonableness Claim • S has Legitimate Interest in B’s Ability to Pay Rent • Why Might Rejection Here Be Unreasonable Anyway? • Source of Info: S “had heard” employer was having financial difficulties • Strength of Connection: betw employer’s problems & B ability to pay rent • Evidence/Possible Facts Relevant to Reasonableness?

  24. ACADIA et al.: DQ2.14 & Note 11:Desirability of Non-Waivable IWH Acadia Sunrise

  25. ACADIA et al.: DQ2.14 & Note 11:Desirability of Non-Waivable IWH • Possible Downsides of Non-Waivable IWH? • Countervailing Arguments?

  26. ACADIA et al.: DQ2.14 & Note 11:Desirability of Non-Waivable IWH • Possible Downsides of Non-Waivable IWH? • Countervailing Arguments?

  27. OPERATION OF IWHConsequences if No Waiver • Limits T freedom of choice by preventing genuine agreements to lease sub-standard housing at below-market prices • Ls may withdraw units from market b/c of increased maintenance costs (condo conversions or shift to higher end rentals or abandonment). Similarly, developers may choose not to create as much low-end housing • BUT may encourage Ls to do preventative maintenance to avoid costly repairs later. (More likely with less delapidated housing stock.

  28. OPERATION OF IWH: Actual Impact of Non-Waivable IWH? • Probably less low-end rental housing than in 1970. Empirically very hard to sort out effects of IWH on housing market in light of other social phenomena such as: • Gentrification • Increased household spending on housing • Decreased government housing construction and subsidies • Increase in wealth gaps

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