Lease to Nonprimary Resident Is Void

Facts: In 1988, landlord started a court case seeking a declaration that tenant's apartment was exempt from rent stabilization based on tenant's nonprimary residence. Landlord and tenant signed a settlement agreement in court that the apartment was exempt. Tenant had moved into the apartment that year while primarily residing in Israel. Tenant agreed to a lease that was renewable throughout his life at a rent higher than the rent-stabilized rent. Tenant agreed not to live in the apartment as his primary residence. Tenant's initial three-year lease was for a monthly rent of $2,000, which was lower than the free market rent. But the legal rent was $1,000. The lease provided for renewal increases consistent with rent guidelines increases. The lease barred tenant from assigning or subletting. In 2002, landlord brought a new court case, seeking to vacate the prior court agreement and declare the lease void. In response, tenant claimed that the only part of the lease that should be void was the part barring subletting. The court ruled against landlord and landlord appealed. Court: Landlord wins. Landlord and tenant can't deregulate the apartment by private agreement. Tenant's lease is void. Tenant is entitled to remain in the apartment at the legal rent as a rent-stabilized tenant as long as he maintains the apartment as his primary residence.

W. End Assocs. v. Harel: NYLJ, 7/17/02, p. 18, col. 1 (App. Div.1 Dept.; Williams, PJ, Tom, Mazzarelli, Rosenberger, Ellerin, JJ)