How to tell if a NYC basement apartment is a legal rental

By Austin Havens-Bowen | November 1, 2019 - 3:00PM 

One way to tell if a basement apartment is legal is if 50 percent of the window is above street level. 


A recent New York Times article described the makeshift and illegal basement apartments where thousands of Queens residents live—many of whom are immigrants. These cheap apartments are cramped, shared spaces where tenants often sleep in shifts, lack their own bathrooms and sometimes stoves too.

But not all basement apartments in NYC are illegal. In fact, the city has launched a pilot program to provide funds to building owners to convert basement apartments into legal, affordable residences to help ease the housing shortage here. A new law that authorizes the pilot program also revised the city’s building code on minimum ceiling heights and window sizes in basement dwellings.

If you’re considering a basement apartment, you need to make sure the apartment is legal—and safe—or you could find yourself evicted after a surprise inspection—or a more tragic situation. Here’s how to tell if a basement apartment is legal. (And you can read more on how to avoid renting an illegal apartment, and the pros and cons of living in a basement apartment.)

Basement or cellar? 

In NYC, basements and cellars are not the same thing, and the difference determines a legal dwelling. According to the Department of Housing, Preservation & Development, a basement has at least half of its height above curb level, while a cellar has less than half.

This is one of the most obvious signs of a legal basement apartment—just look at the ground-level of a building to see whether 50 percent of the window is above grade. 

Generally, cellars in one- and two-family homes are never legal to rent as apartments because they usually lack more than one access point and are considered unsafe. 

Certificate of Occupancy 

If you are want to confirm an apartment is legal, you should check the building's Certificate of Occupancy online via the DOB’s Building Information System, says Katherine Leitch, senior policy analyst at Citizens Housing & Planning Council, a non-profit research organization focused on housing and planning policy in NYC. It can easily be accessed on the DOB’s main page.

A Certificate of Occupancy will state whether or not the basement is considered habitable, says Leitch. It also ensures that the apartment meets the legal requirements and building codes.

Are the ceilings high enough?

In order for the apartment to be legal, the ceiling heights must be a minimum of seven-and-a-half feet high. This is a change from the previous minimum of eight feet, thanks to the recent revision of the city’s building codes.

Getting in and out

Basement apartments must have multiple means of egress in case one entrance is blocked by fire, for example.

“Every sleeping room in a basement apartment must have an egress window or door opening to the outside. The window sill can’t be more than three feet above the floor and the window should be at least 30 inches tall by 24 inches wide,” says Leitch.

If you can’t picture climbing out of the window in an emergency because it is too high or too narrow—it is unlikely to be legal.

Windows also bring in natural light and allow for ventilation, which are also DOB requirements for a legal dwelling. 

Other tell-tale signs 

If you have to access your apartment through a commercial space, like an office, that’s a red flag.

“If you have to walk through someone else’s space to get outside, the apartment probably isn’t legal,” says Leitch.

Other warning signs that a basement apartment is not a legal dwelling: A lack of proper ventilation through visible ducts, or windows, a bathroom and/or kitchen that isn’t fully functional—for example, a hotplate on a table.

Extension cords plugged into another apartment are another warning sign. Heed it and be safe.

Brick Underground articles occasionally include the expertise of, or information about, advertising partners when relevant to the story. We will never promote an advertiser's product without making the relationship clear to our readers.