Brooklyn, NY asked in Real Estate Law and Landlord - Tenant for New York

Q: What are the consequences of an illegal basement apartment in Brooklyn?

I'm thinking of converting my cellar into a one bedroom "apartment". It will have a full three fixture bathroom, a kitchen fixture, a door connecting to the outside and most likely a 3x2 window to the outside. I'll be adding a fire alarm and a monoxide detector as well for additional safety.

What I'm looking for are both consequences and the reality of it being forced. For example, from what I understand NYC DOB rarely enforces or gets a search warrant to inspect the area of interest (despite the inspectors taking the time to show up without a warrant). I'm weighing pros and cons here. I understand the success of an illegal cellar is contingent on the complicity of the tenants, so I would be looking to rent to family friends who wouldn't give me any trouble.

Additionally, does having a basement apartment make a fire insurance policy void?

2 Lawyer Answers
Michael David Siegel
Michael David Siegel
Answered
  • New York, NY
  • Licensed in New York

A: Why not just make it legal and convert your home into a two family? You are not correct about there being no inspections. Also, you cannot enforce a lease of an illegal space. It also will hinder any sale or refinancing. Finally, it violates your insurance, and could lead to a lack of coverage. In short, not a good idea.

Elaine Shay
Elaine Shay
PREMIUM
Answered
  • Landlord Tenant Lawyer
  • New York, NY
  • Licensed in New York

A: From the phrasing of your question, it is obvious you know creating a basement apartment is problematic. In over 30 years of handling L/T matters, I have met many clients that have elected to ignore the law and create illegal apartments. Some get away with it for years before they get caught. However, when a tenant, family member or neighbor, decides not to play along, things can get ugly quickly. If, for example, you have a legal two family house and create a third "illegal" unit in the basement, attic or by subdividing one of the two legal units, you can be prevented from collecting rent from any tenants and face significant fines. Also if a tenant is injured or there is a property damage claim, an owner can be surprised to learn his/her insurance won't cover it and can be subject to criminal charges in certain circumstances.

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