Landlord Can't Enforce ‘Nonprimary Resident' Lease Clause

Facts: Tenant moved into a rent-stabilized apartment with her son in 1991 at a monthly rent of $2,700. DHCR's records showed that prior tenant's rent was $740. Tenant had signed a lease that stated that the apartment wouldn't be her primary residence. Tenant later sued landlord for rent overcharge, claiming the total overcharge was over $87,000. Landlord claimed that tenant said her primary residence was in Woodstock, N.Y. Tenant said this wasn't true. She said landlord told her it wouldn't rent her the apartment unless she agreed to the nonprimary residence clause. Court: Tenant wins. Rent Stabilization Code section 2525.3(b) bars landlord from requiring tenant or prospective tenant to agree not to use apartment as primary residence. This agreement is unenforceable. It was clear that tenant lived in the apartment as her primary residence and that landlord knew this and willfully overcharged tenant. Tenant's rent was reduced to the last registered rent of $740. Tenant was awarded triple damages for the last two years of the four-year overcharge. Tenant was also awarded attorney's fees. The court noted that landlord had frequently inserted illegal nonprimary residence clauses into tenants' leases.

Draper v. Georgia Properties: NYLJ, p. 28, col. 1 (2/21/96) (Sup. Ct. NY; Goodman, J)