Cooperative apartment proprietary leases typically contain a restrictive covenant limiting the use of the apartment to residential use. The courts have generally enforced such lease restrictions on the use of premises for residential use only.1 In the June 2014 decision of Judge Timmie Erin Elsner in Walden Gardens v. Burns,2 however, the Civil Court, Bronx County held that a provision in the subject proprietary lease which required the premises to be used solely for residential use was void and unenforceable to the extent that the premises was used as a “group family day care home” pursuant to Social Services Law Section 390.
Background
The facts as recited by the court in Walden Gardens are as follows: The landlord was a Mitchell-Lama housing company organized under the provisions of Article II of the Private Housing Finance Law. The tenant, Amesha Burns, was the shareholder and proprietary lessee of Apartment 15G in the building located at 3800 Waldo Avenue in the Bronx. The tenant had occupied the premises as tenant-shareholder since 2004. Since December 2009, the tenant had been a “group family day care provider” licensed by the New York State Office of Children and Family Services to provide care for children in the premises.
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