How Many Persons Have the Right to Be in an Apartment? (Spoiler Alert: More Than You Think!)

A Quick Guide to NYC Apartment Occupancy Law

By Pete Weinman, Esq.

This article was inspired in part by the work of Michelle Maratto Itkowitz, Esq. of Itkowitz PLLC, one of New York City's leading housing law attorneys. If you want to go deeper on landlord-tenant law, her podcast — The Tenant Law Podcast — is well worth your time. Available on Apple Podcasts, Spotify, and YouTube.

I. The Roommate Law (RPL § 235-f)

Under NY Real Property Law § 235-f, any residential lease automatically allows the tenant to share the apartment with immediate family and/or unrelated persons — even if the lease says otherwise. Lease provisions to the contrary are void.

One tenant on the lease — the apartment may be occupied by:

• The tenant
• Tenant's immediate family
• One additional occupant (roommate)
• Dependent children of the occupant

Two or more tenants on the lease — all tenants, their immediate families, occupants, and occupants' dependent children may reside there, provided the total number of tenants and occupants (children not counted) does not exceed the number of tenants named on the lease, and at least one tenant or spouse occupies the premises as a primary residence.

Key rules:

• The tenant must notify the landlord of any occupant's name within 30 days of move-in or within 30 days of the landlord's written request.
• A roommate acquires no tenancy rights if the tenant vacates.
• Landlords who violate the Roommate Law face injunctions, actual damages, and potentially attorney's fees.

Important: Never accept rent directly from a roommate. Doing so may inadvertently create a direct landlord-tenant relationship with that person.

II. Occupancy Limits (NYC Admin. Code § 27-2075)

The Roommate Law does not mean unlimited people. NYC requires at least 80 square feet per person (the kitchen counts; bathrooms do not). For every two lawful residents, one child under age four may also reside there at no additional square-footage cost. If a birth or a child's fourth birthday causes overcrowding, the excess is permissible for one year from that event.

Landlords may demand a written affidavit listing all occupants' names, relationships, and ages of any minors.

Extreme Examples — How Many People Can Legally Live There?

#### Example 1: The Crowded Studio

A 480 sq. ft. studio apartment (excluding bathroom) with one tenant on the lease:

• 480 sq. ft. / 80 = 6 people maximum
• The tenant
• Tenant's spouse
• Tenant's two adult siblings (immediate family)
• One roommate
• Roommate's minor child

That is six people in a studio — completely legal.

#### Example 2: The Extended Family Compound

A 2,000 sq. ft. four-bedroom apartment (excluding bathroom) with three tenants on the lease:

• 2,000 sq. ft. / 80 = 25 people maximum
• Three tenants
• Each tenant's spouse (3 spouses)
• Tenant #1's parents and adult brother (3 people)
• Tenant #2's adult daughter and her husband (2 people — still immediate family)
• Tenant #3's three adult children (3 people)
• Since tenants and occupants cannot exceed 3 (the number of tenants named), and all 3 tenants live there, no additional unrelated occupants are permitted

That is 14 adults. Now add the children:

• The three spouses each have two minor children = 6 children
• For every two lawful residents (14), one child under 4 may reside at no extra square-footage cost = 7 toddlers
• Total: 14 adults + 6 older children + 7 toddlers = 27 people. Since toddlers do not count toward the 80 sq. ft. minimum, and 20 people (14 adults + 6 children over 4) is within the 25-person cap, this is lawful.

#### Example 3: The Tight Squeeze

A 320 sq. ft. studio with one tenant:

• 320 sq. ft. / 80 = 4 people maximum
• The tenant
• Tenant's spouse
• One roommate
• Roommate's dependent child

Four people in 320 square feet is not comfortable, but it is legal.

III. Sublets

A. General Rule (RPL § 226-b)

Tenants in buildings with four or more residential units have a statutory right to sublet, subject to the landlord's advance written consent. The landlord may not unreasonably withhold consent.

Procedure: The tenant must send a certified mail request at least 30 days before the proposed sublease, including: proposed term, subtenant's name and address, tenant's reason for subletting, tenant's address during the sublet, co-tenant/guarantor consent, and copies of both the lease and proposed sublease.

• The landlord has 10 days to request additional information.
• The landlord must respond within 30 days of the request (or additional information, whichever is later). Silence equals consent.
• If the landlord unreasonably withholds consent, the tenant may proceed and recover attorney's fees and costs.

B. Rent Stabilized Sublets

A Rent Stabilized tenant may not sublet for more than two years out of any four-year period ending on the sublease termination date. (Rent Stabilization Code § 2525.6(c))

No profiteering: Sublease rent may not exceed the lawful rent, plus up to 10% if furnished. Overcharging the subtenant can result in treble damages upon a DHCR or court finding.

The landlord may charge the prime tenant the sublet allowance set by the NYC Rent Guidelines Board; the prime tenant may pass this along to the subtenant.

Important: Never accept rent directly from the subtenant. Doing so may convert the subtenant into your new Rent Stabilized tenant.

C. Co-Op Sublets

Virtually all proprietary leases prohibit subletting without board approval (exception: holders of unsold shares). Unauthorized subletting is a default, typically subject to a 10–15 day notice to cure. If uncured, the board may terminate the proprietary lease and commence a holdover proceeding.

Critical: Before terminating a proprietary lease, the board must notify the shareholder's lender as required by the Recognition Agreement. Missing this step can be fatal to the proceeding — notice must be sent to every known address for the lender.

IV. Short-Term Rentals

The legal landscape for short-term rentals in NYC has changed dramatically. NYC Local Law 18, effective September 5, 2023, imposes strict registration requirements and effectively prohibits whole-apartment short-term rentals in most NYC buildings.

The Baseline Rule (Multiple Dwelling Law § 4(8)(a))

In buildings with three or more units (Class A multiple dwellings), apartments must be used for permanent residential purposes — meaning occupancy by the same person or family for 30 or more consecutive days. Short-term stays (under 30 days) are only lawful in two narrow circumstances:

Host is present: The guest is living within the household of the permanent occupant (i.e., the tenant is home). This is the classic bed-and-breakfast scenario.

No money changes hands: The tenant is temporarily away (vacation, medical treatment) and lets someone stay for free.

What is never permissible: Taking a paying guest for fewer than 30 days while the tenant is not home.

Local Law 18 — Registration Requirements

• All short-term rental hosts must register with the NYC Mayor's Office of Special Enforcement (OSE) before listing.
• Platforms (Airbnb, VRBO, etc.) may not process transactions for unregistered listings.
• Maximum 2 guests per short-term stay.
• Guests must have free access to all rooms in the apartment.
• Violations carry substantial fines for hosts and platforms alike.

Rent Stabilized Tenants

Using a Rent Stabilized apartment as a hotel or profiteering off it is an incurable ground for eviction that undermines the Rent Stabilization Code. No notice to cure is required. (West 148 LLC v. Yonke; 42nd & 10th Assoc. LLC v. Ikezi)

Bottom line: In NYC, renting your apartment short-term while you are away is essentially illegal in any building with three or more units. Local Law 18 closed the remaining gray areas that some hosts had previously exploited.

V. Home-Based Businesses (NYC Zoning Resolution § 12-10)

Tenants may run limited "home occupation" businesses from an apartment, provided the use is:

• Incidental and secondary to residential use
• Operated by a resident of the unit
• Using no more than 25% of floor area (maximum 500 sq. ft.)
• Employing no more than one outside employee (for professional offices)

Permitted examples: Fine arts studios, professional offices, tutoring of up to four pupils simultaneously (one at a time for music instruction).

Not permitted: Advertising agencies, barber shops, beauty parlors, real estate or insurance offices, stockbrokers' offices, veterinary medicine, or any use producing offensive noise, odors, or external structural changes. A commercial recording studio has been specifically found impermissible. (Mason v. Dept. of Buildings, 307 A.D.2d 94 (1st Dep't 2003))

Bottom line: A quiet professional office with minimal outside traffic is generally lawful. Regular retail foot traffic into the building is not.

Pete Weinman, Esq. is a residential real estate attorney licensed in New York and New Jersey. His practice is focused on home purchases and sales — not landlord-tenant litigation. If you are buying or selling a home on Staten Island or purchasing in New Jersey, contact Weinman Law Offices at 718-442-2010 or Weinman@StatenIslandLaw.com.

260 Christopher Lane, Suite 201 | Staten Island, NY 10314