– Real Estate Section

Real Estate Q & A

OCTOBER 26, 2012

Limiting Co-op Occupancy

Q: I am on a co-op board in Queens. We have concerns about the number of people whom an applicant intends to live with in an apartment. Are there laws regarding occupancy and the square footage? Can the board reject a tenant on this basis?

A: “The answer to both questions is yes,” said Lior Aldad, a Manhattan co-op and condominium lawyer. The city’s Administrative Code limits the number of people who can occupy an apartment based on square footage, he said. For most buildings, the code specifies that there be no less than 80 square feet of living space for each occupant, with certain exceptions.

“So the maximum number of persons who may occupy an apartment is determined by dividing the total livable floor area of the apartment by 80,” Mr. Aldad said.

He noted, however, that for every two people who may lawfully occupy an apartment, one child under age 4 may reside with them without being counted as an “occupant.” Also, some of the floor area of an apartment is not included in the 80-square-foot calculation, like private halls, foyers, bathrooms or water closets. Mr. Aldad added that while a co-op board would be legally permitted to reject a prospective buyer based on overcrowding, most boards do not provide a reason for a rejection because they are not required to do so.