New York City vacation rental ban to come into effect in May 2011
New York City short-term rental ban to come into effect in May 2011
Explaining the lodgers exemption
(also misleadingly referred to as the B&B exemption)
A1000-B/S6873-B, signed into law in July 2010 but coming into effect in May 2011, amended the New York State Multiple Dwelling Law (“MDL”) to prohibit some New York City owners to rent their homes for less than thirty days.
This ban will apply to all “class A multiple dwellings,” which the MDL defines as dwellings occupied as the residence or home of three or more families living independently of each other.
The MDL, however, provides that boarders or roomers may still rent for less than thirty days provided that they live within the household of the permanent occupant(s). [1]
How many boarders or lodgers one is allowed to have in one’s home without being in violation of the MDL?
Four. [2]
Section 4 of the MDL provides as follows:
A family is either a person occupying a dwelling and maintaining a household, with not more than four boarders… or two or more persons occupying a dwelling, living together and maintaining a common household, with not more than four boarders… A boarder residing with a family shall mean a person who pays a consideration for such a residence and does not occupy such space within the household as an incidence of employment therein.
What does “living within the household of the permanent occupant” mean?
Section 27-2004(4) of the Housing Maintenance Code provides, in pertinent part, that “[a] common household is deemed to exist if every member of the family has access to all parts of the dwelling unit” [emphasis added].
Evidence the DOB will look at to determine whether the unit is occupied in compliance with section 27-2004(4) include:
-Are some of the rooms locked?
-Do the occupants share a bathroom or a kitchen? etc.
Please note that some (not all) administrative law judges may have a very strict interpretation of this requirement and may infer from the existence of locks on individual rooms that the unit was illegally altered for occupancy (in other words, some administrative law judges may see individually locked rooms as separate residences).
Are there any other requirements I should be aware when renting my extra bedroom or room(s) to lodgers?
Yes.
Section 248 of the MDL states, “[t]he letting by a family of one or more rooms within their apartment to not more than a total of four boarders, roomers or lodgers provided, however, that every room in such apartment shall have free and unobstructed access to each required exit from such apartment [….]” [emphasis added].
.
[1] Please note that the permanent occupant can either be a tenant or an owner.
[2] Housing Maintenance Code has a more restrictive requirement. Section 27-2004(4) states “[a] family may rent one or more living rooms in a private to no more than two boarders […].” Section 12-10 of the Zoning Resolutions defines a family as “either (a) a single person occupying a dwelling and maintaining a household, including not more than one boarder… or (c) not more than four unrelated persons occupying a dwelling living together and maintaining a common household.”
Any advice for tourists? Our rental for a 5 day vacation had to be cancelled due to this law. Is there any sense in looking for another apartment rental or should we just look for a hotel?
We are sorry to hear that you have been having so much difficulty finding a furnished rental for your visit to New York City. Some real estate agencies, such as NY Habitat (http://www.nyhabitat.com), verify all of the properties listed with them to ensure they comply with the new legislation banning short term rentals in class A multiple dwellings.
You might try to reach out to them. There are a few questions you might want to ask them (you might want to email them your questions as opposed to asking them these questions on the phone): for instance, is the apartment I am interested in exempted from the so called “illegal hotel” legislation? You should also ask them to send you the lease prior to your arrival in New York City etc
You should be able to rent a single-family house or an apartment within a 2-family house without a problem. See the below posts for more information. The ban only applies to Class-A multiple dwellings. This means any apartment building rentals are banned.
You are probably hard-pressed to find these situations within Manhattan, but they are more common in the outer-boroughs (Brooklyn, Queens, etc.)
Good luck!
I’m not sure when this post was left, but we have a legal single family rental home in Queens. I was sick with worry about this law, but it turns out a single family home with whole house occupancy is fully legal. If you are interested, please get in touch with me.
Guys, are you really stupid or just pretend to be???
The solution is very easy.. set a monthly rental agreement with your “short term tenant” with limited access and attached them to a monthly group of tenants : that means that each group is renting from you the apt for 1 month like roommates but this group has decided to set a limited access to your apartment for each individual which is there call and not yours.. so , you are legally rent your property for 30 days. the only thing is that you will have to set the group in advance and to get the payment in advance.. in order to be legal and kosher ..
So could you move on with your life now and relax ??
This settings do not contradict the law and nobody can tell you that you can not rent your apartment for a group of roommates .. even if you have only a studio apt…
That was my thought, exactly! I already know two families with kids fresh out of college living in 2 or 3 BR shared apartments in Brooklyn. The parents want to visit for a week or two and experience the neighborhood. Who can afford hotel rates for that long? We can operate like a bus tour group. One of us collects the rent and sets up the coming and going dates for each party and we set up a one month rental for the group. But, I imagine the the very reputable and responsible people who have been doing a great job of monitoring their units will probably want to know what is going on. Will they go along with it???
Unfortunately guys, I just had a hearing and I was found guilty
of illegal conversion of a 2-family house to transient use, even though
I had leases for 31 days and for 6 weeks for each of the tenants.
The city had no evidence other than the inspectors conversation with
a tenant, who said he was staying “for a few weeks or a few months”
and the inspector also lied and said that other people were arriving with
suitcases just as he was there. I know is a complete lie, but what can I say
other than the inspector is a liar?
This is the second time that I’ve been in city court when the inspector lied,
so I assume it is routine for them to do so.
So, Carolyn and Linda, it looks like your arguments won’t work, and your legal
agreements won’t work… The city simply says “I don’t care” about any evidence
and then will find you guilty and fine you…
This is what happened to me… I will appeal, but I am not too hopeful because
I have already told the truth and presented my evidence, and I was still found guilty!!!
What do you say to that!
Hi Frank… conversion in your case relates to the fact that the occupants were transient and not permanent tenants ( over 30 days) therefore it is considered illegal use.
Only a single family home or a Class B building is okay for transient use.
Anthony….NY state has only banned the under 30 day rentals in New York City. No other counties or cities in the state of NY are affected. Unfair, but true. I asked a prominent politician why this was and was told because tourism is so high in New York City that unscrupulous landlords have been making loads of tax free $$ and putting tourists into unsafe hostel- like conditions.
Hi Wizard,
Thanks for your input. However, to clarify; my building IS a class B building. It is a class B, 2-family dwelling, a brick, 2-family house in Queens. So, according to your post, it should be okay for transient use. The inspector is clearly aware of the class of the building and yet he still issued
me a violation on this basis.
This seems very strange, when, according to your post at least, it appears the city doesn’t have a case. I thought inspectors usually issued violations when they felt they had a case that would hold up in court.
Further, this was for an over 30-day rental, and I have rental agreements to prove this.
So, given this new clarification, Mr Wizard, would you agree that the violation should be dismissed in court? (or can anyone else opine?)
My court dates were twice postponed, and now are re-set for a couple months from now.
Also, given your advice, Mr Wizard, it seems that it should even be ok for me to rent for under 30 days at this class B building location, correct? I thought the code of law 28-118.3.2 refers to something different than this new vacation rental ban law.
Can you also please clarify for me, what is your basis to opine on this topic?
If anyone can give me an opinion, please do so, and let me know what the opinion is based on.
Thanks much for any help!!!
Hi Frank,
From what it seems to me if you have proof that those people were there over 30 days then ther is NO transient occupancy period. 30 days is the bottom line.]
Yes, being a class B means that the MDL hasn’t changed for you at all. The new law only targets Class A dwellings. You could still have a zoning issue on your hands, but as far as the DOB is concerned if your evidence of ” over 30 days” is stronger than theirs ” transient occupancy” you should be fine. Good Luck! Let us know what happens.
Hi Wizard,
I had my hearing last month, and it looks like I was found guilty.
I presented my leases, which were for 31 days and 6 weeks, respectively.
My attorney argued that the multiple dwelling law only applies to
houses of 3-families or more, so it doesn’t apply to me and he also
argued that transient occupancy is a defined legal term which applies
only to stays shorter than 30 days, so it wouldn’t apply to these stays.
I can see a hearing status of “in violation” on the ECB website, but I
have not yet received a formal decision, so I don’t know why the city has
come to this decision… I assume the formal decision will include the basis
for this decision, correct?
I think it is pretty ridiculous to say the least.. The city can just say guilty
as an absolute, and there seems to be not much I can do about it…
I plan to appeal, but what chance do I have now that the city already
seems to reject the argument that everyone says is valid?
Hi Frank,
You should appeal and you/your attorney needs to get testimony from the tenants who were staying there on the day the task force came. Of course you understand this is a money machine and their main goal is to charge enough fines to put you out of business. The judges are different in an appeal court and they MAY look more deeply at the evidence. If you have not gotten a letter in the mail yet regarding the hearing decision then it has not been decided yet. I am pretty sure it will include the basis for the decision. An administrative judge is looking for “more likely than not” instead of innocent until proven guilty. I would love to have your contact information if you can provide it. I am not an attorney, but I have been to a few of these hearings. You may not win on appeal, but you might and giving up is not the answer.
Thanks for your opinion Wiz.
I already asked my attorney to appeal.
He said the decision was wrong, and
the only way to fight is to appeal, so we’re
moving forward with it.
He also said the appeal process can take over a year.
He said it is not hearing based but briefs, which he
described as reiterating legal points to be examined
by the appeals board.
So it would seem I can’t offer any more testimony
or evidence, and since they already ruled against
me, and I am very skeptical that the city will be
willing to return money during a fiscal crisis, I am
not too hopeful. (I have to pay the fine within 20
days regardless of the appeal – if I win they are
supposed to return the money)
I wouldn’t mind speaking to you, but I am reluctant
to put my information out on the Internet.
If you give me a way to contact you, like an
email or phone, I’ll get in touch with you.
Maybe I’ll create a new email and send it to you
Hi Wiz,
You can email me at lehman_bros@yahoo.com to further discuss my specific case.
I may not reply immediately since I rarely use this email address
(the last time I checked it was Jan 2010 – I just checked now, though, to make sure it still works)
If you plan to contact me, please post it here and I will make a point to check it
so we can be in touch, otherwise it will probably be another year before I look at it.
I hope to hear from you.
yep I’ll send an e-mail… thanks…
I own a 2-family house in NYC for which I just (June 2011) received a violation that states “occupancy contrary to C of O” (2-family house) “Illegal Occupancy noted: Apartments have been converted to transient use” and that I should “discontinue illegal use”
The violation states that “occupants at both floors indicated they are only here for a “visit”, “just a few weeks stay” & “I only arrived yesterday”
The violation references a code of law: 28-118.3.2.
I looked up the code which states “no change shall be made to a building or lot inconsistent with its Certificate of Occupancy”
I have a court date set for August, and plan to hire an attorney.
The only things that have been done are to furnish the apartments, and to put keyless locks on the building exterior entry door and on both apartment interior entry doors. Otherwise they are standard apartments. This can hardly be considered a “converted” or “changed” building/lot. This seems like a big stretch.
Can anyone comment as whether this can be fought without an attorney and/or whether the city has a legitimate case? What is the basis on which transient occupancy is allowed in a 2-family dwelling, or even a 1-family for that matter. I also own a furnished 1-family and am concerned this could come up in the future at my other rental.
Dear Frank,
Is the City alleging that you have illegally converted a 2 family house into a multiple dwelling or a rooming house? An illegal conversion is the creation of one or more additional dwelling units within a home without first receiving the approval of, and permits from, the NYC Department Of Buildings. Did you call or visit the Inspection Unit within the Department of Buildings local borough office?
Please let us know and we will follow-up with you the best we can.
On the other end of this, I will be visiting New York next month and was looking at renting an apartment. What are the guidelines for tourists? Are rentals shown on sites like VRBO.com pretty much the the issue?
Thank you Dee for your comment.
We will be posting in the coming weeks some guidelines to help tourists choose safe solutions.
We wanted to wait and see if there was any last minutes changes before we gave our recommendations.
Thanks for your patience.
how is the ny state and nyc govt going to enforce this law?
are they going building to building that have more than 3 units to check by knocking on doors to speak with tenants (ie like census workers did in 2010)?
The New York State Multiple Dwelling Law only applies to cities with a population of more than 325,000 (i.e. New York City).
In July 2010, Krueger, co-sponsor of the legislation,declared to USA
Today: “[i]t’s a complaint-driven system, and if nobody makes a complaint there’s no issue.” In an article published in the Washington Street Journal on July 26 2010, Jason Post, a spokesman for the Mayor, said that enforcement of the new legislation will be complaint based and largely fueled by calls to 311 but he did not rule out that that investigators would monitor rental-listing websites.
The Mayor’s Office of Special Enforcement (“OSE”) will be investigating the complaints. The OSE is currently responsible for coordinating enforcement efforts across City agencies to address quality of life issues related to notorious adult use locations, lawless clubs, trademark counterfeiting bazaars etc..
I still am completely in the dark as to whether or not I am legal or illegal. I have a single family, detached home with three bedrooms, two baths in a residential area. It sleeps 5 total, maybe a 6th on an airbed or the sofa. Can I rent this as a short term rental or not?
The MDL law applies to buildings of three units/apartments or more. Your property is a single family dwelling, correct? The MDL then should not apply to your property. Do you rent the whole dwelling (or rooms within the dwelling)?
will DOB conduct inspections of apartments to check for locks?
isnt this law overly broad? ny state is the only state to ban 30 day rentals in Class multiple dwellings throughout the state How will this law affect other cities and counties in NY state?
anyone aware of a lawsuit challenging the constitutionality of this law?