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Super living in an illegal basement apartment? Don't go there

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Has your building's super set up home in the basement, which isn't actually zoned for living? Be afraid, be very afraid of the many reasons any number of people can sue your co-op or condo and win.

The issue was raised this week on StreetEasy.com, where one commenter suggests looking the other way. But two lawyers we checked in with--Jonathan Kolbrener at Braverman & Associates, and Jeffrey Reich at Wolf, Haldenstein, Adler Freeman & Herz--strongly disagree.

Failure to comply with city zoning regulations is evidence of negligence if there is, say, a fire in the illegal unit and people sue. And who might those people be?: 

  • Other residents, especially if the fire resulted from improper use of the space.
  • The super, who, in addition to compensation for personal injuries, could recover the repair or replacement cost of his property along with the expense of finding another place to live.
  • Firefighters injured while extinguishing a fire.

Worse, the co-op or condo insurer may withdraw coverage, based on the improper use of the space. That would leave the building on the hook for the full amount of damages.

"The potential risks are significant," says Kolbrener. Anything other than a properly zoned apartment is not a "viable option."

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