2 family used as 3

[23Degrees]

but what if:

Zoning and building not linked in any way and the zoning code makes no mention of permits or CO's - ??? Those who say "legal" seem to have a good argument.


Let's find out - pick a Municipality in your market area to research ____________________________

I was hoping someone could tell us for the jurisdiction of interest here: NYC

 

[Mike Kennedy]

I was hoping someone could tell us for the jurisdiction of interest here: NYC

...Post #1

3 floor house plus a basement, as per certificate of occupancy this is a legal 2 family house in which the first and second floor intended to use as a duplex and the third floor is the rental unit. The owner is using the house as a 3 family as follow:




............Post 56

 

[HF Mudd]

The only linkage I see between Zoning and DOB is for new development.

http://www.tenant.net/Other_Laws/zoning/zonch02.html

As-of-Right Development

Most development or use of unimproved land need meet only the provisions of the Zoning Resolution to be granted a building permit as a matter of right. This means that a developer may build a structure as-of-right if the Department of Buildings is satisfied that the structure complies with the Zoning Resolution and the Building Code. No action is required by the City Planning Commission under such circumstances. The developer simply files architectural plans with the Department of Buildings and can begin construction upon issuance of a building permit.
...

Certifications

For some as-of-right development, the City Planning Commission or the Chairperson of the City Planning Commission is required to administratively certify to the Department of Buildings that certain specified conditions set forth in the Zoning Resolution have been satisfied before a building permit may be issued.

 

[23Degrees]

...Post #1

3 floor house plus a basement, as per certificate of occupancy this is a legal 2 family house in which the first and second floor intended to use as a duplex and the third floor is the rental unit. The owner is using the house as a 3 family as follow:




............Post 56

Yes but the argument to be made is that this is from the building department and the "legal" question we are forced to answer is with regard to "zoning compliance". To quash that argument on any specific case we need a link or overlap between zoning and building.

 

[23Degrees]

The only linkage I see between Zoning and DOB is for new development.

[url]http://www.tenant.net/Other_Laws/zoning/zonch02.html[/URL]

As-of-Right Development

Most development or use of unimproved land need meet only the provisions of the Zoning Resolution to be granted a building permit as a matter of right. This means that a developer may build a structure as-of-right if the Department of Buildings is satisfied that the structure complies with the Zoning Resolution and the Building Code. No action is required by the City Planning Commission under such circumstances. The developer simply files architectural plans with the Department of Buildings and can begin construction upon issuance of a building permit.
...

Certifications

For some as-of-right development, the City Planning Commission or the Chairperson of the City Planning Commission is required to administratively certify to the Department of Buildings that certain specified conditions set forth in the Zoning Resolution have been satisfied before a building permit may be issued.

OK, so based on this information would you, NYC appraisers, be comfortable checking "legal" for zoning compliance in this situation?

That is, are you comfortable that there is no other paragraph buried somewhere in zoning that a Fannie lawyer could cite or that said Fannie lawyer could not somehow argue that based on the above it was not appropriate for the appraiser to have checked legal? Based on the information that I have I'm not sure if I'd be comfortable checking any box at this point in an "as is" report for that question and would probably insist on proceeding "subject to" so as to not be responsible for that call without having it in writing from the city for that specific address and situation.

It is important to remember that Fannie delegates due diligence on appraisal quality to the lender. If they so choose on any particular deal they can come in, check the address, see if the legal box is checked, see that the "as is" box is checked, look at the OMV and make a go of it. If you checked legal on a property that they argue should have been checked "illegal" and therefore not fit for their lending criteria it won't matter how many disclaiming paragraphs you stuck in there as they'll argue that the "as is" box should not have been checked if the "legal" box was also checked.

So is it "legal", "illegal", or do you go "subject to"?

 

[Mike Kennedy]

scroll down to the discussion postings - on topic >>>

http://www.city-data.com/forum/new-york-city/1718063-3-family-apartment-3-floors-illegal.html

http://www.reiclub.com/forums/index.php?topic=28445.0;wap2


Queens County NY
ANSWERS TO COMMONLY ASKED QUESTIONS
An illegal apartment conversion is a serious offense under the New York City Building Code, and can result in fines up to $15,000 and up to one year in jail. This Guide has been prepared by the Office of the Queens Borough President, with the assistance of the NYC Department of Buildings, to help educate homeowners and tenants about the laws regulating illegal conversions.

WHAT IS AN ILLEGAL CONVERSION?
An illegal conversion is the creation of one or more additional dwelling units within a home without first receiving the approval of, and permits from, the NYC Department of Buildings. Such conversions often involve the alteration or modification of an existing one- family or two-family home by adding an apartment in the basement or attic. Sometimes several dwelling units are added to a home to create an illegal rooming house.

WHAT ARE THE FINES FOR EACH VIOLATION?
The penalty for an illegal conversion violation ranges from $250 to $2,500. A second offense at the same location within 18 months can result in fines between $1,000 and $10,000. If you are convicted of a third violation within a single 18-month period, you can be fined between $5,000 and $15,000. In addition, ECB can impose a civil penalty of up to $100 per day from the date the notice of violation is issued until the illegal condition is corrected.

HOW IS AN ILLEGAL CONDITION CORRECTED?
An illegal conversion violation may be corrected in one of two ways:

1. Remove the illegal condition: The altered spaces must be restored to its prior legal use or layout. This may require a permit to remove partitions, plumbing, fixtures and entrances. All tenants in the illegal units must leave.
2. If possible, legalize the illegal condition: Under certain limited circumstances, the additional housing unit may be legalized by following the guidelines below and obtaining a Certificate of Occupancy from the Department of Buildings. The Certificate of Occupancy is a document that describes the legal occupancy use of your building (for example, a one-family home, a two-family home or a 10-story apartment building). Go to www.nyc.gov/buildings and check “Resolving Department of Buildings Violations” for further information.

WHEN MUST THE ILLEGAL CONDITION BE CORRECTED?
There are significant fines and penalties for illegal apartment conversions. If you have an illegal apartment in your home, you should take steps to correct the illegal condition before you receive a notice of violation. If you eliminate the illegal condition before the Buildings Department conducts an inspection, you will not receive a violation notice and will not be charged with any penalties. If the Buildings Department conducts an inspection and finds a violation of the Building Code, you should take steps to eliminate the illegal condition immediately, because civil penalties can be imposed from the date of the violation notice until the date that the illegal condition is corrected.

HOW DOES THE VIOLATION GET DISMISSED?
Attending the ECB hearing and paying a fine is not enough to get a violations dismissed. You also must show that the illegal condition has been fixed, by filing a Certificate of Correction with the Building Department’s Administrative Enforcement Unit (AEU). The form is available from the AEU or the borough office.


WHEN A ONE-FAMILY OR TWO-FAMILY HOME IS CONVERTED TO A BUILDING WITH THREE OR MORE UNITS:
Rent: A landlord cannot collect rent from any tenants where a one-family dwelling has been illegally converted into a building with three or more dwelling units. In such case, neither the tenants in the illegal units nor the tenants in the legal units must pay rent, and the landlord cannot bring a non-payment proceeding in Housing Court. However, if the landlord has a legal three-family dwelling with a valid registration statement on file and adds an illegal apartment, the landlord may seek action for non-payment, but only against the tenants in the legal dwelling units.

Eviction: If a landlord has a legal three-family dwelling with a valid registration statement on file, the landlord can seek action in Housing Court to evict the tenants. Most illegal conversions are in one-family and two-family dwellings, and owners of these dwellings do not have the right to seek eviction.

Please Note: This document is for informational purposes only.
Tenants should seek legal advice for specific cases.

How can I get more information about...

ZONING RULES AND REGULATIONS:
NYC Department of City Planning / Zoning Information Desk
22 Reade Street
New York, New York 10007
1-212-720-3291


http://www.tenant.net/phpBB2/viewtopic.php?t=4954

 

[sandpiperapp]

WHAT IS ZONING?
Zoning is a tool that regulates the use, density and type of structure that can be built on property within New York City. Every block and lot within the city limits is zoned for residential, commercial and/or industrial uses.

Residential zones range from R1 to R10; the “R” stands for “residential” and the number for the density (the higher the number, the higher the density allowed). Only single family detached homes are permitted in R1 and R2 districts. Other housing types are permitted in R3 - R10 zoned districts. Go to www.nyc.gov/buildings to check the zoning of your property.

There is no question that the use is illegal. CO states two family.

I still do not see any tie in which says the zoning becomes non-compliant because one allowable use is changed to another allowable use, even if that change is illegal. The zoning has not changed, just the use.

Now if the use was changed to non residential, say a small beauty shop on the first floor, I would say the zoning is non compliant

 

[23Degrees]

I still do not see any tie in which says the zoning becomes non-compliant because one allowable use is changed to another allowable use, even if that change is illegal. The zoning has not changed, just the use.

Now if the use was changed to non residential, say a small beauty shop on the first floor, I would say the zoning is non compliant

Have to say I agree based on what I've seen. Here is an example of text taken directly from the zoning code of a city in SoCal that makes it pretty clear that checking "legal" with regard to zoning compliance would be a mistake in an "as is" report for a situation like this:

(a) Permits and Licenses. No building or structure shall be erected, reconstructed, structurally altered, enlarged, moved, or maintained, nor shall any building, structure, or land be used or designed to be used for any use other than is permitted in the zone in which such building, structure, or land is located and then only after applying for and securing all permits and licenses required by all laws and ordinances. (Amended by Ord. No. 131,319, Eff. 1/16/66.)


Find something like that for NYC in zoning and you have your answer. Not that I'd be anxious to proceed "as is" and "legal" in this case just because my perusal of the zoning code says its ok to do so.

 

[Mike Kennedy]

Zoning
Article 1

http://www.nyc.gov/html/dcp/pdf/zone/art01c05.pdf

I suggest the OP who accepted the Assignment research this and let us know the result.

 

[HF Mudd]

Zoning
Article 1

http://www.nyc.gov/html/dcp/pdf/zone/art01c05.pdf

I suggest the OP who accepted the Assignment research this and let us know the result.

Breaking out the big guns, the zoning resolution. My brain hurts when I start reading the legalese. And that's just one chapter.

:new_snipersmilie: