Illegal basement apartments?

[Edward OConor]

Ed - typically two separate issues in most markets.

1. finished basement

2. additional apartment/kitchen

3. "cellar" typically UNFINISHED storage & utility.

So if I am clear, when the C/O states "cellar" and the basement is finished, an appraiser should make the report subject to removal of all interior finish or a C/O that states that the "cellar is finished"?

 

[Kevin Mc]

So if I am clear, when the C/O states "cellar" and the basement is finished, an appraiser should make the report subject to removal of all interior finish or a C/O that states that the "cellar is finished"?

100% absolutely not. What is the issue here Ed? If you have a finished basement call it such and move on. You are assuming the role of the UW. If the basement is finished and contains an "illegal" apartment(not a second kitchen, which is different in the city of NY eyes) call it as such and either recommend it's removal (what I would do) or establish it is either an ethnic second kitchen and/or wasn't being used for illegal purposes, had 2 points of egress, note it is common (or not) for the area and move on. Rare is the CO for a home in NYC built prior to 1965 that states "finished basement".

 

[The Warrior Monk]

I'm no expert on the matter, but there are various state regs regarding this issue. For example, there must be two ingress/egress (of a certain predefined size) in each room. If you don't have that, then I would suspect you don't have legal finishing. I don't know what the situation is regarding grandfathering of below-grade living space is; not all preexisting conditions are automatically legal nonconforming.

Plumbing and electric work definitely need permits. However, just because those permits exist doesn't mean the finishing is legal. Plumbing, electric, and livable below-grade space are all separate issues needing separate permits.

 

[Tony V]

Not only are there State Regs, but then Town and Village regs also get to play in the arena.

 

[Edward OConor]

Playing devils advocate:

A 16*36 A1 in Richmond Hill:

The original C/O from 1926 states a 1 Fam with a cellar. A C/O dated 1954 states a 2 Fam converted from a 1 Fam with a cellar.

The inspection reveals that there is in deed 2 families (1 on the first floor and one on the second floor). The basement (cellar) is finished with interior partitions, electric, bath and a kitchen. The only egress is through the back door which will also allow egress to the first floor kitchen.

The appraiser is unable to locate any permit applicantions (either approved or dis-approved) for anything regarding the cellar finish.

The UW sends a stipp that the property is to be made "legal".

What needs to be done?

 

[Kevin Mc]

The UW sends a stipp that the property is to be made "legal".

What needs to be done?

Obviously an illegal kitchen, the stove has to go. The bath most likely isn't legal either unless the homeowner can prove otherwise.

 

[Edward OConor]

I spoke to the very patient and understanding people of the Queens building dept. Some of whom were irritated that I would not give a specific address.

What I got from them is the following (short version):

If the C/O states "cellar", then the below grade level should be found as unfinished, concrete walls and floor. This area is to be used for storage PERIOD. Even the use as a family room would be considered illegal

ANY finish "could be illegal". The only way to determine "legality" would be to compare the current floor plan with what is on file at the building department with an inspector.

The consensus was that ALL kitchens in the cellar are illegal and need to be removed.

THE HOMEOWNER CANNOT JUST REMOVE THE KITCHEN!!!!!

To legally remove a kitchen (or anything else) require an architect to draw plans, file permits and have the result inspected by an inspector.


As I understand, if the C/O states "cellar" just the removal of the kitchen may not be enough to make the property "legal". It may also require the removal of all interior finish. The only person qualified to determine this is the building inspector.

I am working on a CYA statement. I'll post it later, maybe with everyone's help we can come up with a good one.

 

[Kevin Mc]

Not for nothing Ed, you have been appraising for 20 years+ and this is your "new" approach to this? What have you been doing the past 20 years? you are going to start making folks rip out their entire basements because some dolt at the building department told you so? so in the future any CO is run that states cellar for a property with a finished basement is now going to be "subject to" complete basement ripout? ...boy are you going to be popular.

 

[Kevin Mc]

The consensus was that ALL kitchens in the cellar are illegal and need to be ]
removed.

False. One can get a permit. Half of Kew Gardens Hills (orthodox jewish) has them.

THE HOMEOWNER CANNOT JUST REMOVE THE KITCHEN!!!!!

Again false. I recently dealt with this issue in Middle Village. City made the homeowner remove the stove and the toilet. Cabinets and sink were left with the building inspectors blessing.

 

[Mike Kennedy]

http://www.geocities.com/creedcivic/conversions.htm


From the Office of: Claire Shulman, Queens Borough President

Illegal Apartment Conversions: A Guide to the Law and Enforcement Procedures

February 1998

Answers to Commonly Asked Questions

The illegal addition of a dwelling unit to a home 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 Queens Borough President's Office, with the assistance of the NYC Department of Buildings, to help educate homeowners and tenants about the laws regulating illegal conversions.

Locate your question, then click on its red dot, or scroll down the page.......

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 their prior legal use or layout. This may require the removal of partitions, plumbing fixtures and entrances. All tenants in the illegal units must leave, but they have certain rights which must be respected (discussed below).

• • 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 buildings (for example, a one-family home, a two-family home or a 10-story apartment building).

When must the illegal condition be corrected?

• As noted above, there are significant fines and penalties for illegal conversions. As a result, if you have an illegal apartment in your home, you should take steps to correct the illegal condition before you receive a violation notice. 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 do I legalize an additional dwelling unit in my home?

• First you have to determine if your property is zoned for multiple housing units or apartments. Second, the size of your property must be sufficient under the zoning rules. For basic zoning questions, you can call the Department of Buildings' Customer Service Department at (718) 520-3401. The building's structure is also important. For example, due to fire safety concerns, a wood frame house cannot be converted to multiple housing units. Other features that affect building access and egress in case of an emergency -- such as the location of doors, stairs and windows -- are also important. If the zoning, lot size and building structure are appropriate, then you must hire a New York State-licensed registered architect (R.A.) or professional engineer (P.E.) to prepare design drawings and submit an alteration application to the Department of Buildings on your behalf. A filing fee must be paid when you submit the permit application, and the size of the fee depends upon the scope of the work. There is also a penalty for a legalization -- for a one-family or two-family home, it is two times the cost of the filing fee.

• After the Buildings Department approves the application, you will receive a work permit to legalize the existing conditions. If plumbing or electrical work is required, you must hire a NYC-licensed plumber or electrician to verify that the work meets the standards of the Building Code. After the work is completed, you can request that the Buildings Department issue a new Certificate of Occupancy. Buildings Department inspectors will check your building to make certain that it conforms with the plans submitted by your architect or engineer. If it does, the Department will issue a new Certificate of Occupancy, describing the present status and legal use of the building.

• If the zoning rules do not permit multiple housing units or apartments, then the extra housing unit cannot be made legal under any circumstances. The improper use must be stopped and the home must be restored to its prior legal layout.

What are the rights of the tenants in an illegal apartment?

• Rights of tenants in buildings with illegal units depend upon the number of legal units in the building.

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 or two-family dwelling has been converted into a building with at least three dwelling units (an "illegal 3+"). Thus, neither the tenant in the illegal units nor the tenant in the legal units must pay rent in such circumstances, and the landlord cannot bring a non-payment proceeding in Housing Court. If the landlord has a legal three-family dwelling with valid registration statement on file and adds an illegal apartment, the landlord can bring a non-payment proceeding, 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 evict the tenants by bringing a summary holdover proceeding in Housing Court. Most illegal conversions are in one-family and two-family dwellings, and owners of these "illegal 3+" dwellings do not have the right to use the Housing Court for eviction proceedings. The landlord instead must bring an ejectment action in Civil Court if the taxes assessed on the home are below $25,000. If taxes are over $25,000, the case must be brought in Supreme Court. The entire eviction process takes a minimum of six months.

NYC Department of Buildings
Customer Service Department
126-06 Queens Boulevard
Kew Gardens, N.Y. 11415
(718) 520-3401