Affordable Housing

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

By Austin Havens-Bowen | March 8, 2022 - 3:00PM 

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

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When Hurricane Ida blew through New York City in September, it dumped more than half a foot of rain on Central Park in just a few hours, floated cars down city streets, and halted the subway system. At least 11 people were killed when their basement-level apartments filled with water or suffered other storm-related destruction.

The storm cast new attention on the problem of basement apartments–and the city's lack of progress to bring these units up to code and make them safe for living.

Not all basement apartments in NYC are illegal or unsafe, but you need to check them out carefully—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.)


[Editor's note: A previous version of this post was published in November 2019. We are presenting it again with updated information for March 2022.]


Basement or cellar? 

In NYC, basements and cellars are not the same thing, and the difference determines whether it is 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 is less than half above grade.

This is one of the most obvious ways to tell whether a basement apartment is legal: Look at the ground-level of a building and check 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 (more on that below) and are considered unsafe for use as living space. 

Certificate of Occupancy 

If you are want to confirm an apartment is legal, you should check the building's Certificate of Occupancy via the DOB’s Building Information System, says Katherine Leitch, senior policy analyst at Citizens Housing & Planning Council, a non-profit housing and planning policy research organization. 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, Leitch says. 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 height must be a minimum of 7.5 feet high. This is a change from the previous minimum of 8 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,” Leitch says.

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,” Leitch says.

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

Extension cords plugged into outlets in another apartment are another warning sign. Pay attention and move on to the next place.

Austin Havens-Bowen

Staff Writer

Staff writer Austin Havens-Bowen covers the rental market and answers renters' questions in a column called Realty Bites. He previously reported on local news for the Queens Ledger and The Hunts Point Express in the Bronx. He graduated from Hunter College with a BA in media studies. 

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