NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A10008B
SPONSOR: Gottfried (MS) TITLE OF BILL: An act to amend the multiple dwelling law and the
administrative code of the city of New York, in relation to clarifying
certain provisions relating to occupancy of class A multiple dwellings
SUMMARY OF SPECIFIC PROVISIONS: Sections 1, 5, 6 and 7 of this bill
would amend provisions of (i) the Multiple Dwelling Law
MDL § 4(8)(a))
and, (ii) the Administrative Code of the City of New York
1968 Building
Code §27-265, New , York City Building Code § BC 310.1.2 and New York
City Housing Maintenance Code § 27-2004 (a)(8)(a) to delete the terms
"as a rule" and "primarily" preceding the term "permanent residence
purposes" or the description of month to month residence as used in such
provisions.
Some owners of class A multiple dwellings have been illegally using
Class A dwelling units as transient hotels. When called upon to justi-
fy this fundamentally unsafe and illegal practice, they have cited the
ambiguity of the terms "as a rule" and "primarily" preceding the
requirement of "permanent residence" or "long term" residence for such
dwellings. These owners have also claimed that the permanent or long
term residence requirement is met when the dwelling unit is leased by a
corporate entity for more than 30 days even though the actual occupancy
by individuals is less than 30 days. This bill would put an end to these
spurious defenses by defining the term "permanent residence purposes" as
occupancy by a natural person or family for 30 consecutive days or long-
er (the permanent occupants). Only the permanent occupants would be
permitted to allow occupancy of the dwelling unit for less than 30
consecutive days and even then only by lawful boarders, roomers or lodg-
ers or house guests living within the household of the permanent occu-
pants or while the permanent occupants are temporarily absent for vaca-
tion or other personal reason if there is no monetary compensation for
such use. (This would not restrict any right a landlord might have to
limit such use.)
The bill contains a narrow exemption for buildings owned by colleges or
universities. It allows these institutions to use the larger of five
units or five percent of the units in the building for occupancy of less
than 30 days for visitors to the institution, provided that there is no
monetary compensation for such use.
Section 2 of this bill adds a new subdivision 16 to Section 67 of the
Multiple Dwelling Law that would permit legalization of the use of Class
A dwelling units for other than permanent residence purposes in certain
-dwellings constructed pursuant to plans filed on or prior to April 18,
1929, subject to certain conditions relating to past and present hotel
occupancy and fire safety requirements. Occupancy of such dwelling units
for other than permanent residence purposes would be permitted to
continue for up to two years after the effective date of such subdivi-
sion if that occupancy existed on and after January 1, 2009, and if the
dwelling units are registered with the enforcing agency and the owner
submits certification by an architect or engineer that the dwelling
complies with the fire safety requirements of such subdivision. The
owner must obtain a certificate of occupancy authorizing use of the
dwelling for other than permanent residence purposes within two years
after such effective date. If no such certificate of occupancy is
obtained within such 2-year period, the department may grant a third
year with cause. The applicant may apply to the Board of Standards and
Appeals for no more than two extensions of one year if circumstances
beyond the applicant's control or hardship prevent obtaining a new
certificate. All use of registered dwelling units for other than perma-
nent residence purposes must thereafter cease.
Section 3 of the bill would add a new Section 120 to the Multiple Dwell-
ing Law that would permit legalization of the use of Class A dwelling
units for other than permanent residence purposes in certain dwellings
constructed pursuant to plans filed after April 18, 1929 but prior to
December 15, 1961, subject to certain conditions relating to past and
present hotel occupancy and fire safety requirements. Occupancy of such
dwelling units for other than, permanent residence purposes would be
permitted to continue for up to three years after the effective date of
such subdivision if that occupancy existed on and after January 1, 2009,
and if the dwelling units are registered with the enforcing agency and
the owner submits certification by an architect or engineer that the
dwelling complies with the fire safety requirements of such subdivision.
The owner must obtain a certificate of occupancy authorizing use of the
dwelling for other than permanent residence purposes within two years
after such effective date. If no such certificate of occupancy is
obtained within such 2-year period, the department may grant a third
year with cause. The applicant may apply to the Board of Standards and
Appeals for no more than two extensions of one year if circumstances
beyond the applicant's control or hardship prevent obtaining a new
certificate. All use of registered dwelling units for other than perma-
nent residence purposes must thereafter cease.
Section 4 of the bill would amend subdivision 1 of Section 248 of the
Multiple Dwelling Law and delete subdivision 16 of such section to clar-
ify that a dwelling occupied as a class A dwelling pursuant to such
section may only be occupied for permanent residence purposes in accord-
ance with paragraph a of subdivision 8 of Section 4 of this Chapter, as
amended by Section 1 of this bill.
JUSTIFICATION: The, Multiple Dwelling Law and local Building, Fire
and Housing Maintenance Codes establish stricter fire safety standards
for dwellings such as hotels that rent rooms on a day to day (transient)
basis than the standards for dwellings intended for month to month
(permanent) residence. There are substantial penalties for owners who
use dwellings constructed for permanent occupancy (Class A) as illegal
hotels. However, the economic incentive for this unlawful and dangerous
practice has increased, while it is easier than ever to advertise ille-
gal hotel rooms for rent to tourists over the internet. This is espe-
cially so in New York City, which is attracting visitors and tourists
from around the world in record numbers. In most cases tourists respond-
ing to such advertisements are unaware that the rooms are being offered
in violation of the law. Not only does this practice offer unfair compe-
tition to legitimate hotels that have made substantial investments to
comply with the law but it is unfair to the legitimate "permanent" occu-
pants of such dwellings who must endure the inconvenience of hotel occu-
pancy in their buildings and it decreases the supply of affordable
permanent housing. It endangers both the legal and illegal occupants of
t he building because it does not comply with fire and safety codes for
transient use.
Recently, law enforcement actions against illegal hotels have been
hindered by challenges to the interpretation of "permanent residence"
that enforcing agencies have relied on for decades. In City of New York
v. 330 Continental, LLC. 60 AD3d 226, 231 (1St Dept. 2009) the Court
held that the Multiple Dwelling Law allows a minority of the units in
building classified as a Class, "A" Multiple Dwelling to be occupied for
nonpermanent or transient occupancy. The court based this holding, in
part, on the definition of Class "A" multiple dwelling, as set forth
under Section 4(8)(a) of the Multiple Dwelling Law. In interpreting
Section 4(8)(a) of the Multiple Dwelling Law, the court held that "the
statute's use of the phrase 'as a rule' indicates that a secondary use
of the building, different from the specified primary use, is permit-
ted." The court concluded that no violation of the Class A certificate
of occupancy would result from use of a minority of the units in one of
the buildings for nonpermanent or transient occupancy.
It is impossible to enforce the law against illegal hotels if the law is
interpreted in the manner compelled in this case. This bill will fulfill
the original intent of the law, as construed by enforcing agencies,
including the New York City Department of Buildings, by modifying the
specific provisions of the Multiple Dwelling Law and applicable local
codes that have been cited by defendants in enforcement proceedings as
authority for the use of Class A dwellings as illegal transient hotels.
The only "secondary" transient use of class A dwelling units allowed
would be use by the permanent occupants-natural persons, not corporate
entities - for house guests, boarders, roomers or lodgers living within
the household of the permanent occupants or for circumstances such as
the occasional pet or apartment "sitter" when the permanent occupants
are absent for personal reasons, such as vacation or for medical treat-
ment.
There is a small number of Class A buildings, some constructed before
April 1929 and some constructed before December 1961, currently operat-
ing as hotels, which have a historic record of hotel use that precedes a
zoning classification that prohibits such hotel use. These buildings
would be allowed to convert to Class B occupancy and to continue to rent
Class A dwelling units as hotel rooms during a two year conversion peri-
od commencing on the effective date of this bill. Hotel use of Class A
dwelling units in such buildings during the conversion period would be
subject to registration and stringent fire safety requirements and must
cease at the end of such period unless the owner has obtained a Class B
certificate of occupancy which the Department of Buildings could issue
upon compliance with the building codes for transient occupancy.
There is a more than adequate supply of legitimate hotels with accommo-
dations in all price ranges. Should the growth of tourism result in
increased demand for hotel rooms in the future, commercially zoned areas
of the city allow widespread opportunities for new legitimate hotels.
The enactment of this legislation will protect public safety by assist-
ing law enforcement efforts to curb the proliferation of illegal hotels.
Provisions of the bill are keyed to 1929 and 1961 because significant
relevant changes in the Multiple Dwelling Law and New York City zoning
were made at those times.
The City of New York supports this bill.
PRIOR LEGISLATIVE HISTORY: None
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: Immediately.
