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Scott E. Mollen

Landlord-Tenant—Landlord is Liable for Tenant Allowing Transient Use of Apartment—NYC Administrative Code §28-210.3 Does Not Require Intent

A rental apartment building owner (landlord) commenced an Article 78 proceeding against the NYC Department of Buildings (DOB). The landlord had leased an apartment to a tenant from Aug. 1, 2016 to July 31, 2017 (tenant). The lease was a “renewal lease,” which indicated the tenant had rented the apartment for at least a year before Aug. 1, 2016. The lease rider provided that the tenant agreed that it was “illegal for a tenant to rent out this unit for temporary stays, less than 30 days, on Air BNB or other websites.” The rider “essentially requires compliance” with NYC Admin. Code §28-210.3 (statute), which provides:

Except as otherwise provided…dwelling units within (i) a class A multiple dwelling as defined in section 27-2004 of the administrative code, (ii) occupancy group J-2 as described in section 27-265 of the administrative code or (iii) occupancy group R-2 as described in section 310.1.2 of the New York city building code shall be used only for permanent residence purposes…. It shall be unlawful for any person or entity who owns or occupies a multiple dwelling or dwelling unit classified for permanent residence purposes to use or occupy, offer or permit the use or occupancy or to convert for use or occupancy such multiple dwelling or dwelling unit for other than permanent residence purposes. For the purposes of this section a conversion in use of a dwelling unit may occur irrespective of whether any physical changes have been made to such dwelling unit….

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