Legalizing basement apartment in NYC?

September 6, 2006 3:11 AM

Anyone have experience with legalizing an apartment in NYC? I inherited a basement apartment with my single-family Queens house. Have a great relationship with my tenant and do not want to evict. Recently, though, I've received notices from the city to discontinue "illegal use of space for living." In addition to evicting that would involve tearing out the tub, a wall, and other stuff.

The previous owner received these notices too, but she ignored them and told the inspector to come back with a warrant (which never happened).

I'm willing to try this and risk the fines but would prefer to legalize the place. However, it has small windows and is probably not up to current code for light & air. Does anyone here know if there's a way around this? Any grandfather clauses for old places (the house is 120 yrs old, the apartment maybe 30)? Any recommendations for an attorney or expeditor who could help?

The DCE website offers little hope but I'm holding out for insider info if anyone can help. Thanks!

posted by anonymous to Law & Government (12 answers total)

I had this happen but not in NY. Basically you will have to appeal to the common council and see if you can get a variance. In our case the unit was allowed to remain but could not be used as a rental or living space. It helped that we lived in one unit of the duplex. If you continue to rent out the unit and ignore city hall you will eventually get screwed, so it isn't worth it.
posted by JJ86 at 5:57 AM on September 6, 2006

You need to read the NYC Building Code and you need to find out what your property is zoned. Then get a copy of the NYC Zoning Handbook (I bet your library has a copy).

I am somewhat familiar with these issues in Chicago, not NYC. My guess is that some of the violations may be grandfathered, but not all of them. I assume you need a license to lease; do you have one? An inspector is not a police officer and doesn't need a warrant. The previous owner is lucky to have escaped without huge fines (in Chicago, each day that a violation occurs is a new violation, so not having sprinklers where you ought for a month could net you thirty independent fines). To do anything legally (after viewing the proper codes and finding out what it is you need to do) would require temporarily putting out your tenant, obtaining building permits, and hiring a contractor or doing the work yourself. It may be that only a licensed electrician can do any wiring; same goes for plumbing.

To do anything illegally would require a huge bribe and some serious moxie.

Good luck.
posted by Terminal Verbosity at 6:25 AM on September 6, 2006

I don't think you need a license to lease (out spaces in a building you own) in NYC unless your building has more than 4 units. Correct me if I'm wrong.
posted by ThePinkSuperhero at 6:49 AM on September 6, 2006 [1 favorite]

Terminal Verbosity, without the building inspector entering the apartment to see what is what, they really can't fine the owner for any specific violations. If the homeowner continues to deny entry to the inspector, it will sit in limbo. Generally, city building inspectors can and do get warrants to enter the property and make an inspection if they have just cause to believe there is a major violation.
posted by JJ86 at 6:49 AM on September 6, 2006

I really wouldn't take the advice of anyone in this thread who hasn't dealt with this issue in NYC, Anonymous- NYC Real Estate is it's own ball of wax entirely.
posted by ThePinkSuperhero at 6:56 AM on September 6, 2006 [1 favorite]

I agree with the Pink Superhero. Don't listen to any advice outside of NYC. The NYC building code supercedes all other codes. It's likely you might not be able to legalize it.

Step one is to check your Certificate of Occupancy, and all previous C of O's for that property on file. The NYC DOB has all this online in the BIS [gotta love all the acronyms, eh?]. The cellar may have once been listed as occupiable space in the past. After you plug in your address, click on the "View Certificate of Occupany" in the upper right. It'll bring you to a page listing all past [if any] and current C of O's as PDFs. Open it and check to see what the occupancy and use is listed for the "Cellar."

The next step is to call a Code Consultant within NYC. They should pretty quickly be able to tell you whether or not it'll be possible to legalize your cellar. If you then proceed to legalize, it'll cost you the consultant's time and well as nice pretty DOB filing fees. Oh, and you'll probably have to hire an Architect to draw plans showing egress, etc. It won't be cheap.
posted by yeti at 7:56 AM on September 6, 2006

NYC Real Estate is it's own ball of wax entirely

For instance, I believe NYC has a live/work occupancy that is easier to get than a live only, a legacy of all those starving artists.

One can also become a NYC certified artist, and I have seen landlords request that in borderline cases.
posted by StickyCarpet at 8:59 AM on September 6, 2006

I'm de-anonymizing so as not to bug Jessamyn with this. Don't have a mefi history anyway, but I was posting anonymously because of the legally borderline nature of my problem.

Thanks for the answers. StickyCarpet, does the live/work occupancy have relevance for a cellar apartment or is that only for Williamsburg warehouse-type stuff? As it happens, my tenant is an artist. (Though this is not her problem to solve of course.)

Yeti, I don't believe there is a C of O on record for our house. We'd be willing to pay a good amount to legalize. However, it's complicated b/c we are DIYers and have done nearly a gut-rehab on the place ourselves (and with the help of qualified friends) with work including wiring, plumbing, etc. I'm not sure what an inspector would say about this stuff either.

ThePinkSuperhero, you're so right about NYC real estate and that's why I'm looking for advice. I don't want to take unnecessary action (everyone here has these apartments), nor do I want to be foolish.

The last owner was an old-timer, lots of moxie and familiar with bribes. :) However, going that route is not my preference and anyway we're not sure whether what worked in the good ol' days still applies.

Thanks again for the advice!
posted by torticat at 9:34 AM on September 6, 2006

Get a lawyer. There are attorneys in NYC who do nothing but represent landlords, and they'll know exactly what do to and who to call to find out what the next step should be. Your lawyer will also likely be able to recommend a code consultant and other experts to work with you, and you're somewhat less likely to be overcharged than if you tried to hire them yourself. Legalizing the apartment will probably be expensive, but in most cases, if you have the right expert advice, it can be done.

IANAL, but my understanding of NYC residential real estate restrictions leads me to believe that you may have to kick your tenant out, at least temporarily. Basically, NYC law is designed to protect "tenants' rights," which in this case means that the city can come in and tell you and your tenant that the living conditions for which he willingly pays you a rent you've both agreed is fair are in violation of his rights, and that he'll have to find a new place to live. It sucks for both of you. But having qualified representation will help keep your legal exposure to a minimum.
posted by Amy Phillips at 9:46 AM on September 6, 2006

Yeah, the inspector won't like the gut rehab, especially the plumbing work [electric work isn't filed with the DOB]. I'm having a dilemma getting a final C of O for a project in an apartment complex because another architect starting renovating the Penthouse before we were done. It's a headache. If you're going to legalize the basement, you might wish to legalize the whole thing. I'd be shocked if your address didn't have a C of O on file. In the end, you'll have to get professional help to wade through all the legalese.
posted by yeti at 11:28 AM on September 6, 2006

We do have an attorney, and he said that making the place legal depends on "who you know and who you pay." But the expeditor he referred us to was by-the-book and did not sound optimistic.

(Is a "code consultant" the same as an expeditor?)

yeti, I too think it's weird that we have no C of O, but at least there's none on file at the DOB website. Maybe it's filed somewhere on paper but the online records don't go back that far.
posted by torticat at 12:40 PM on September 6, 2006

Yeah, an expeditor is the same thing. Try another. We work with some who are downright pessimists and claim there is no solution and there's nothing to be done; meanwhile another will work with you to find one. It doesn't hurt to get a second opinion. Not all expeditors/code consultants interpret the code in the same way. YMMV.
posted by yeti at 2:28 PM on September 6, 2006