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New York City vacation rental ban to come into effect in May 2011

February 7, 2011

City Hall New YorkNew 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.”

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37 Comments
  1. Leah permalink

    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

    • Kid Rico permalink

      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!

    • Jane permalink

      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.

      • Peter permalink

        I have a 2-family home, and am concerned about doing a vacation rental of the upstairs apartment. I know that we are not treated as a multiple dwelling, but do you know whether we can do a vacation rental (less than 30 days) given the fact that we live in a residential neighborhood? Also, can you direct me to any good information on this subject? Thanks so much. Peter

  2. linda permalink

    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…

    • Carolyn permalink

      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???

    • Frank McConnell permalink

      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!

  3. thewizardandilola permalink

    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.

    • Frank McConnell permalink

      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.

    • Frank McConnell permalink

      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.

      • Frank McConnell permalink

        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

    • Frank McConnell permalink

      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.

  4. Frank McConnell permalink

    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.

      • Frank McConnell permalink

        Dear Protect Vacation Rentals..

        No, the city is not alleging conversion into a multiple dwelling.
        The property is already a legal 2-family house.

        The violation is exactly as written above “occupancy contrary to C of O – Illegal Occupancy noted: Apartments have been converted to transient use – occupants at both floors indicated they are only here for a “visit”, “just a few weeks stay” & “I only arrived yesterday”

        Remedy: “discontinue illegal use”

        But as I stated already, this is a 2-family house, NOT a rooming house, and NOT a class A dwelling. These tenants each rented a full apartment within the 2-family house. Nothing has been done to “convert” anything in this house…

        I had the court date pushed back a couple times, and it’s now reset to take place in a month or so. I am not too comfortable with the attorney representing me. He’s young and takes on lots of cases at a low cost and goes through them one after another without spending much time on any individual case.

        Another attorney who would have spent more time on this wanted 10 times the money as an upfront retainer, which would have been more than the penalty associated with the case if found guilty.

        My concern is that since the city needs raise money, I might be ruled guilty just because the judge has the power to do so, and so the city can then collect the fine money…

        Any guidance you can give me would be appreciated.

      • Hi Frank,
        Having been to ECB court on 2 separate occasions relating to this, I can say your chances are 50/50 even though you are absolutely in the right. You must prove that the MDL law DOES NOT apply to you because you are not a class A multiple dwelling. If your C of O says 2 family then nothing has changed for you in regard to short-term rental. I can tell you that they may well bring up zoning so make sure you know your zoning and you or your attorney needs to be able to provide examples of short-term rentals in your zoning type. Remember it is administrative court and decisions are not based on ” innocent until proven guilty” so sadly most folks get fined, even when they shouldn’t. You have 30 days to appeal, which might be a good idea.

    • Frank McConnell permalink

      Yes Wizard,

      This is old news, and you’re right – I lost in court, and I lost the appeal, also. They didn’t even bring up the MDL law, though, and I don’t think the inspector was even aware of the MDL law. The violation was written out as “occupancy contrary to C of O”. Their case was that the house had been “converted to transient use”, which the judge / city ruled is not allowed by the C of O… Really to me it was/is a specious argument, and weak, but nonetheless the city got their money.

      This same violation can be written against any single family house being rented out on a short-term basis, with no relation to the MDL or zoning as far as I can tell. ie: “Your C of O is for a single family house, and you converted it to transient use, contrary to C of O” – This argument doesn’t even really make any sense to me, but this is the argument they used, even disregarding the lease I presented as evidence, so it just seems like they wanted the money.

      I’d just advise J.S.D below and anyone else who rents out short-term, to screen potential tenants and don’t rent to people who you think might cause a problem with the neighbors or neighborhood where you rent. Use good judgement, try your best to keep everyone happy, and hopefully no one will have a reason to file a complaint, so this will never be an issue you need to deal with. (easier said than done of course, and some people will complain about anything)

      Regardless, this new law did not seem to be the issue in my particular case.

      • Thanks for the update. There is no law/statute or rule that I am aware of that states transient use is NOT permitted in a single family dwelling. I am curious what law or statute they quoted. I have a small collection of decisions from “illegal hotel” cases. If you would be so kind to send me yours it might help others. Many people come to me for help. Often times judges say things or quote cases that then can set a precedent. You can contact me through STAY-NYC at info@staynyc.org
        BTW the inspector is certainly aware of the MDL law… before it was passed they had no bases for bringing folks into court because there was no clear definition of transient. I hope you contact me through STAY-NYC. I am trying to help others the best I can.

      • Frank McConnell permalink

        I’ll email you directly at the address you provided to share the details of my case and the appeal decision, which I still have a copy of. Hopefully it will be of benefit to someone else in the future & you can perhaps comment to me on it as well. Thanks & regards,

      • Thanks Frank… appreciated… we do all learn from one another.

  5. Dee permalink

    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.

  6. Elle permalink

    Hi,

    I have building class L-8 , it is classified as commercial Loft building…..i have 7 units that i rent on Live-Work basis using Loft Lease though I know that tenants occupy all 7 Lofts on permanent basis. One Loft I rent on short term basis….

    I still trying to figure out if bill S6873 applies to me….can i still continue renting one of the Lofts on short term basis?

    Thanks

    • Dear Elle,

      Chapter 225 of 2010 (“New York Short-Term Rental Ban”) does not apply to commercial lofts but other laws and regulations might restrict
      their legal use and occupancy. We recommend that you consult with your attorney. Good luck!

  7. ANTHONY HOM permalink

    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..

  8. J. S. D. permalink

    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)?

      • J. S. D. permalink

        hi. thanks so much for your reply. I rent the whole house for short periods to tourists. Not rooms within. The doors can lock, but with a 100 year old knob mechanism that all open with the same skeleton key.

        I’m getting the feeling I’m ok as regards this law they just signed last year, but since the motivation here is clearly from the hotel lobby to put the competition out of business, it seems there must be some law somewhere that makes me illegal too. <:/ No?

      • Frank McConnell permalink

        Hi J.S.D.,

        Although technically this law does not apply to you, as I pointed out in my above post, it didn’t apply to my situation either, but this did not stop the city from issuing me a violation for “transient use” – occupancy contrary to C of O, and this is NOT a multiple dwelling.

        I pled not guilty but was found guilty and paid the fine, which was $1600. The inspectors came around because of neighbor complaints. Without neighbor complaints, there is no reason for an inspector to issue you a violation, and no reason for concern.

      • Inspectors do sometimes check for locks on doors if you are renting out rooms.
        The MDL law change is NOT throughout the state. It applies to NYC MDL only.
        There were a few cases that were not successful… they were regarding the “taking” of property. Judge thought that since apartments can be used for tenants that it did not cause undue financial hardship.

        Again JSD if you are a Class A multiple Dwelling you are are risk. If you are a single Family home you are not affected by this law, but may possible still run afoul of the zoning resolution. Talk to a zoning expert about that.

  9. ANTHONY HOM permalink

    will DOB conduct inspections of apartments to check for locks?

  10. ANTHONY HOM permalink

    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?

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