What do I do as a tenant of an illegal apartment?
May 2, 2012 8:46 PM   Subscribe

Am I in legal trouble if I have been living in an illegal attic apartment in NYC?

I sort of knew in the back of my mind that my third-floor apartment, which I share with a roommate, is illegal, since the houses in this neighborhood (in NYC) are zoned for two families. We have signed a full lease and are not subletters. Today I got home and found that the Department of Buildings has left a notice for the landlord asking them to call for an inspection, and on the form they've indicated that my unit is illegal.

What, if anything, do I need to do about this? Obviously I am going to leave the notice for the landlord, who does not live here but picks up mail from downstairs. I am concerned since I am actually in the process of trying to purchase an apartment, and hope this will not impact me negatively.
posted by anonymous to Law & Government (8 answers total)
IANAL or a tenant's rights & responsibilites expert, but I would imagine liabiliy falls solely with the landlord. That is the person who is illegally renting an apartment, and it is not unreasonable for you to assume that any agreement which is covered in a lease is a legal living arrangement. I can see no reason why this would impact your buying an apartment legally, other than you may need to move out sooner than anticipated if the city decides to take action. Again, this is just spitballing and my personal logic at work, so in addition to letting the landlord know, I would contact a tenant's rights/housing authority agency to receive specific, 100% accurate advice. Good luck, and I think your landlord is a jerk for putting you in this position.
posted by katemcd at 8:52 PM on May 2, 2012 [7 favorites]

Am I in legal trouble if I have been living in an illegal attic apartment in NYC?

I just skimmed a half dozen forum threads on the subject and am now an expert.

It's completely the landlord's responsibility legally. The city will fine him.

He will have to rip out the fixtures and partitions in order to satisfy the city. He's going to have evict you in order to do this, by means of a something called a "holdover petition". He can't do this overnight:

"Eviction: The landlord first serves a 30-day eviction notice. If the tenant does not leave in 30 days, the landlord can then file a summary eviction proceeding in Housing Court. It usually takes 1-3 weeks to take the case in front of a judge, who typically gives the tenant 30-60 days to vacate the dwelling. As a result, the entire process will take from two to four months before the tenant is required to leave. In some cases, the court, in its discretion, may grant an adjournment. "

Going by inchoate chatter in some other forums, there is a slim chance you may be able to sue him to get your rent back although this does not seem likely. There is a slightly fatter chance you may be able to sue him for moving expenses / temporary housing / brokerage fees.

I believe you may be able to stop paying rent, (perhaps putting the funds into an escrow account), because it's not legal for him to charge you rent.

I would contact a tenant's rights/housing authority agency to receive specific, 100% accurate advice.
posted by sebastienbailard at 10:19 PM on May 2, 2012 [3 favorites]

Current zoning is not the same as what use is allowed in a previously-built building. Your building's use is determined by what zoning and building permits they had at the time they constructed it, and what permits they've pulled since.

I own a triplex in Oakland that looks like a single-family home and was converted in a way that probably wouldn't be allowed today. Yet in the city's eyes, it is totally legal. It was converted to a triplex in the late 1940's. Could it be that yours was the one building on the block that was legally converted to a triplex? Might they send a form letter to all likely cases but may yet find out your unit is legal? Or, if not, might they just want money and are planning to allow the unit to be converted for a fee?

Either way, you won't be in trouble. But if you stop paying your rent, save it, don't spend it, so you'll have it ready to pay if the need arises.
posted by slidell at 12:36 AM on May 3, 2012

It might be a good idea for you to keep a copy of this notice about the upcoming Department of Buildings inspection; it might also be a good idea to be prepared to evacuate with little to no notice --- assuming it IS an illegal apartment, they might either lock it up on the spot or give you x hours to get out, although hopefully you'd at least have a few days. Either way, be prepared! (One of my siblings had a similar problem here in Virginia: she was given a couple hours to get everything out of her place....)
posted by easily confused at 3:18 AM on May 3, 2012

Yes, this falls on the landlord and not you. Your unit could have been grandfathered in if it was completed before the zoning. (If DOB is there I'm guessing that's not the case, but it's certainly possible and you could have believed the unit was grandfathered in good faith.)

If you more information without raising flags by contacting someone at the city directly, you could check the NYC Department of Buildings building search site, which should give you more information on current and past violations and inspections, and maybe some older permit information to establish when the conversion actually took place.
posted by pie ninja at 4:05 AM on May 3, 2012 [1 favorite]

"It's an illegal apartment" means "the landlord broke the law when he rented it to you." It's not your business to know what houses in your neighborhood, or your particular house, are zoned for. It's your landlord's business.
posted by thebazilist at 6:21 AM on May 3, 2012

Lucky you! You live in NYC. Call 511 and tell them what's going on, they can refer you to agencies that can answer your questions.

You're not in any trouble, your landlord is. If your apartment is illegal, your lease is illegal, so you're not bound to any agreement in it (if my 1600 hours of People's Court is correct). Be prepared to move, but don't stop paying rent. (after all, you are living there).
posted by Ruthless Bunny at 6:28 AM on May 3, 2012 [2 favorites]

This happened to my sister-in-law when she lived on the Lower East Side. It was totally the landlord's responsibility. She had to move, unfortunately, but that was it.
posted by tommasz at 10:00 AM on May 3, 2012

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