Performing Background Checks and Adding Nonspouse to Lease

Q Is an owner violating the Rent Stabilization Code by doing a background check before adding someone to the lease agreement and/or before issuing keys? Also, is the owner allowed to charge a vacancy increase by adding someone to the lease other than the spouse?

A The answer to the first question is “no,” according to a DHCR opinion letter dated May 27, 2009, by Bruce Falbo. The answer to the second question is “yes.”

Pursuant to Section 2522.5(g)(1) of the Rent Stabilization Code (RSC), an owner is required to provide a renewal lease that is on the same terms and conditions as the expiring lease. However, “the tenant shall have the right to have his or her spouse, whether husband or wife, added to the lease or any renewal thereof as an additional tenant when said spouse resided in the housing accommodation as his or her primary residence.”

Complying with the above requirement does not entitle an owner to a vacancy increase. However, the RSC does not contain any similar requirement to add the name of a nonspouse to the lease. An owner who agrees to do so is entitled to charge the vacancy increase since a new tenancy is created, permitting the owner to offer a vacancy lease naming the original tenants and the added nonspouse as tenants.