Illegal Apartment Conversions:

A Guide to the Law and Enforcement Procedures

FROM THE BOROUGH PRESIDENTS OFFICE 1998

Answers to Commonly Asked Questions

February 1998

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.

 
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.

Why does the Government care what I do with my private home?
 

Government regulates many private activities to protect the health and safety of its residents. Illegal conversions are frequently done in violation of existing fire and building codes, and constitute a significant danger to tenants and other individuals living in the buildings. In addition, fires that begin in homes with illegal apartments can spread to neighboring homes. Illegal conversions also reduce the quality of life in our neighborhoods by crowding more people into an area than was originally intended. This unplanned growth causes a severe strain on municipal services, and frequently results in school overcrowding, reduced parking, understaffed police stations and increased sewer and sanitation problems.

Is every apartment added to a home illegal?
 

No. Depending upon the circumstances, it is sometimes permissible to add an apartment to a home. First, the building must be in an area which is zoned to allow additional dwelling units. Second, the property lot and building size must meet the zoning requirements. Third, you must obtain a building permit from the NYC Buildings Department to add the new dwelling unit. Finally, the Certificate of Occupancy must be changed to reflect the current status and use of the home. If you are considering adding an apartment to your home, you should first speak with a licensed architect or engineer, who will tell you whether it is legal to do so based upon the applicable zoning in your area.

What is zoning?
 

Zoning 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 permitted density (the higher the number, the higher the density allowed). Single family homes are zoned R1 and R2, two-family homes are permitted in R3 zones, small apartment buildings generally are zoned R4 or R5 and large apartment buildings are zoned R6 and up.

If I already have an additional dwelling unit in my home, how do I know if it is legal?
 

If you added the apartment to your home without first getting a permit from the NYC Buildings Department, then it is illegal, and you must either remove the apartment or have it legalized. If the apartment already existed when you bought the home, you should check the Certificate of Occupancy for the building, or speak with a licensed architect or engineer.

I want to buy a house, and my real estate broker says I can earn extra income by renting the basement. Is it legal to do so?
 

Not necessarily. As noted above, whether a basement apartment is legal depends upon the zoning in the area, whether all necessary building permits were obtained, and whether the Certificate of Occupancy allows an additional dwelling unit. Some unscrupulous real estate agents tell prospective home purchasers that they will be able to afford a larger house with a larger mortgage by renting the basement to a tenant, even if the zoning prohibits such a use. If you want to file a complaint against a real estate agent or broker, you can contact:

New York State Department of State
Division of Licensing Services
270 Broadway
New York, New York 10007
(212) 417-5747

I added a full bathroom to my basement for my own use, but did not get a building permit first. Is this legal?
 

No. Even if you do not intend to create a separate "apartment" to be rented to tenants, you can still be fined for adding a full bathroom or kitchen to your basement or attic -- or making other major alterations -- without first obtaining permission from the Department of Buildings.

How do I report an illegal apartment in my neighborhood?
 

The NYC Department of Buildings is responsible for investigating complaints of illegal apartments. If you know of an illegal apartment in your area, you can file a complaint by calling or writing to:

New York City Department of Buildings
Queens Borough Office
126-06 Queens Boulevard
Kew Gardens, NY 11415
(718) 520-3402

In the alternative, you can call your local community board or one of the elected officials who represents your area.

I know that my neighbor is adding an illegal apartment. How can I stop this before the apartment is completed?
 

The NYC Department of Buildings has the power to issue a "stop work order" to prevent the continuation of construction without a permit. In addition, the NYC Department of Consumer Affairs has the power to revoke the license of a home improvement business that takes part in illegal conversions. The Department of Buildings can be reached at (718) 520-3402, and you can call the Department of Consumer Affairs at (212) 487-4291.

What happens after a complaint is filed?
 

Whenever an illegal apartment complaint is received from a private citizen, community group or elected official, an inspector from the Building Department's Quality of Life Task Force will inspect the dwelling. If the inspector finds an illegal apartment or other violation of the Building Code, the inspector will issue a violation notice to the owner. Sometimes the inspector cannot gain access to the home, and will leave a notice asking the owner to arrange for an inspection of the home. If the owner does not respond, the inspector will return to the location at another time to try to gain access to the home.

What do I do if I receive a violation notice?
 

If you have received a notice of violation for maintaining an illegal apartment, you are required to attend a hearing at the Environmental Control Board (ECB). The notice of violation will tell you the time, date and location of the hearing. If you cannot attend the hearing on the specified date, you can request a new date by calling the ECB Queens office at (718) 595- 4584. ECB will try to accommodate you and will set a new date, unless the hearing has already been rescheduled more than once.If you or your representative do not attend the hearing, a default judgment will be entered automatically. By defaulting, you will be assessed the maximum penalty allowed under the law.

A default can be reopened in 30 days, but after 30 days you will need to provide documented proof to the ECB Queens office justifying your failure to attend the hearing on the scheduled date. If you continue to ignore ECB hearing notices and fail to respond within 90 days, the Department of Finance will collect the maximum penalty.

Do I have to hire an attorney?
 

Representation by an attorney is not mandatory. However, you may wish to seek legal advice prior to going to the ECB hearing. You also may contact the Building Department's Administrative Enforcement Unit (AEU) at (212) 312-8400 beforehand if you have questions about the hearing process.

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 found guilty of a third violation within a single 18-month period, you can be fined between $5,000 and $15,000. In some cases, jail time can be imposed. 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 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 does the violation get dismissed?
 

Attending the ECB hearing and paying a fine is not enough to get a violation 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 AEU or the borough office. In order to prove that the condition has been corrected, you must submit either evidence that the illegal condition has been eliminated (such as photographs and bills from contractors) or a new Certificate of Occupancy if you have legalized the unit. This is very important, because penalties can continue to accrue until you have proved that the violation has been cured.

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 home is converted to two-family home:
 

Rent: Landlords can commence a non-payment proceeding in Housing Court against tenants in legal or illegal units, and although individual cases may be decided differently, as a general rule the tenants most likely will be found liable for the rent.

Eviction: The landlord first serves a 30-day notice to leave. If 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 before the case is called before 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 the meantime, the tenant is entitled to basic services, such as adequate heat and hot water. Even after a notice of violation has been received, the landlord does not have the right to remove bathroom and cooking fixtures to make the apartment uninhabitable in an effort to force the tenant out.

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.