Skip to main content
Fulltext search
FILTER RESULTS BY:
RECOMMENDED IN RENT
Moving to NYC after college? Here's how to find a rental apartment
RECOMMENDED IN BUY
How buying real estate in NYC is unlike anywhere else
RECOMMENDED IN SELL
A guide to using a no-fee renovation loan from a NYC real estate firm
RECOMMENDED IN IMPROVE
How to make your NYC renovation more pet-friendly
BEST REAL ESTATE WEBSITE!
National Association of Real Estate Editors
BEST REAL ESTATE WEBSITE! National Association of Real Estate Editors
Brick Underground
Social Links
follow:
  • Facebook
  • Twitter
  • Instagram
  • Flipboard
  • search
Brick Underground
☰ Brick Underground
Brick Underground
Brick Underground
☰
Brick Underground
  • Buy
    • Buy
    • The Market
    • Investing
    • New Construction + Condos
    • Affordable Housing
    • Co-ops
    • Negotiating + Financing
    • How to Buy in NYC Guide
    Townhouses in Bedfort-Stuyvesant, Brooklyn
    Sell
    The 10 NYC neighborhoods with the most properties selling over asking price
    Manhattan waterfront condo buildings
    Sell
    Manhattan deals hit new two-year high as inventory wanes
    Apartment buildings on Flatbush Avenue in Brooklyn.
    Sell
    Brooklyn median sales price passes $1 million for the first time
  • Rent
    • Rent
    • Affordable Housing
    • Roommates + Landlords
    • The Market
    • The Search
    • How to Rent in NYC Guide
    This is a photograph of brightly painted fire escapes on historic brick buildings in the Lower East Side of Manhattan.
    The Search
    NYC renters have filed hundreds of FARE Act complaints. Here’s what happens next
    NYC apartment buildings
    Rent
    New law aims to give NYC renters who served time a fair chance at housing
    Manhattan apartment buildings seen from Central Park
    Rent
    Inflation vs. signing a new lease in Manhattan: Which is more painful?
  • Sell
    • Sell
    • Staging + Open Houses
    • Negotiations + Closings
    • Getting Ready
    • How to Sell in NYC Guide
    Townhouses in Bedfort-Stuyvesant, Brooklyn
    Sell
    The 10 NYC neighborhoods with the most properties selling over asking price
    Manhattan waterfront condo buildings
    Sell
    Manhattan deals hit new two-year high as inventory wanes
    Apartment buildings on Flatbush Avenue in Brooklyn.
    Sell
    Brooklyn median sales price passes $1 million for the first time
  • Live
    • Live
    • Neighbors
    • Kids + Pets
    • Neighborhood Intel
    • Products + Test-drives
    • Troubleshooting
    FlatRate moving brick underground
    Live
    How to troubleshoot your move in advance
    Sponsored By flatrate
    Fire escape on brick apartment building in NYC
    Troubleshooting
    A fire safety checklist for your NYC apartment building
    A handheld gas detector
    Live
    Gas was seeping through our walls and my family is lucky our neighbor took action
  • Improve
    • Improve
    • Small Spaces
    • Small Projects + DIY
    • Renovations
    • Design + Architecture
    • Products + Services
    • How to Renovate in NYC Guide
    insurance adjuster inspecting mold
    Products + Services
    How to tell if your apartment has mold—and how to get rid of it
    Woman on the phone to a plumber about a leaking sink
    Small Projects + DIY
    Here's what I learned to get our absentee landlord to fix things fast
    Apartment buildings in Lower Manhattan
    Renovation
    What repairs are co-op and condo owners responsible for, and what do buildings take care of?
  • Boards & Buildings
    • Boards & Buildings
    • Boards
    • Finance
    • Insurance
    • Legal
    • Property Management
    • Structure & Systems
    • Sustainability
    Burned and Boarded Up Windows
    When should your board hire a public adjuster?
    Manhattan GM
    What should we consider when renewing insurance for our building?
    Facade of NYC buildings
    How much is insurance on a NYC co-op or condo building?
  • Advertise
    • Advertise with us
    • Sponsored Content
    • Experts
    FlatRate moving brick underground
    Live
    How to troubleshoot your move in advance
    Sponsored By flatrate
    Apartment buildings in Lower Manhattan
    Rent
    Ask Altagracia: If I pay a broker’s fee that a landlord should cover under the FARE Act, can I get a refund?
    Sponsored By Outerbridge Law P.C.
    young woman using space heater to supplement apartment heat
    Rent
    Ask Altagracia: My electric fan heaters cost a fortune to run. How do I get the landlord to replace them?
    Sponsored By Outerbridge Law P.C.
  • Brick Report
  • About Us
  • About Us
Email Address
Fulltext search
FILTER RESULTS BY:
New Main menu
  • Buy
    • Buy
    • The Market
    • Investing
    • New Construction + Condos
    • Affordable Housing
    • Co-ops
    • Negotiating + Financing
    • How to Buy in NYC Guide
  • Rent
    • Rent
    • Affordable Housing
    • Roommates + Landlords
    • The Market
    • The Search
    • How to Rent in NYC Guide
  • Sell
    • Sell
    • Staging + Open Houses
    • Negotiations + Closings
    • Getting Ready
    • How to Sell in NYC Guide
  • Live
    • Live
    • Neighbors
    • Kids + Pets
    • Neighborhood Intel
    • Products + Test-drives
    • Troubleshooting
  • Improve
    • Improve
    • Small Spaces
    • Small Projects + DIY
    • Renovations
    • Design + Architecture
    • Products + Services
    • How to Renovate in NYC Guide
  • Boards & Buildings
    • Boards & Buildings
    • Boards
    • Finance
    • Insurance
    • Legal
    • Property Management
    • Structure & Systems
    • Sustainability
  • Advertise
    • Advertise with us
    • Sponsored Content
    • Experts
  • Brick Report
  • About Us
    • About Us
    • Advertise
  • About Us
SUBSCRIBE TO OUR NEWSLETTER →
Social Links Footer
  • Facebook
  • Twitter
  • Instagram
  • Search
Ask Altagracia [ SPONSORED ]

Ask Sam: What makes a NYC apartment illegal? Are there consequences for tenants?

By Himmelstein McConnell Gribben & Joseph LLP  | January 28, 2021 - 12:30PM
image

An apartment might be illegal if a below-grade basement space is being used as a bedroom.

Spencer Means / Flickr

SHARE:
Share to Facebook
Share to Twitter
Print
More...

What would make an apartment illegal? And what happens to tenants who live there?

There are several conditions under which an apartment could be considered illegal, says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations, and the consequences vary depending on the circumstances.

One of the most common situations occurs when a landlord creates a duplex apartment that includes a basement and markets that underground space as a bedroom.

“If there are no window and the space is below grade, that’s illegal—the space is considered a rec room, not a bedroom,” Himmelstein says. “This is a very common illegal use. Always be suspicious of bedrooms in the basement.”

According to Housing and Preservation Development, basement apartments cannot be rented legally unless they meet specific requirements for air, light, sanitation, and means of egress.

“Occasionally we also see situations where there’s an apartment that’s entirely in an attic or basement, which is generally illegal,” Himmelstein adds.

Another form of illegal apartment are single room occupancy units that have been converted illegitimately to standard apartments. In some cases, landlords fail to update the building’s certificate of occupancy or certificate of no harassment when they undertake the conversion.

“If you’re suspicious about this, go on the DOB website and see if your building has a CO. If it does, see if the apartment you're renting, or the general use of building, seems to conform with the CO,” Himmelstein says. “If the CO says every floor of the building has individual, hotel-like rooms and you're being rented an apartment with a kitchen, bathroom, and bedroom, it’s probably an illegal apartment, and the landlord would have had to amend CO to reflect that different use.”

There are other types of CO violations that could make an apartment illegal. Some apartments, for instance, may have been zoned for commercial use, intended to be used as doctors’ offices or retail spaces, but are being rented illegally as residential units instead.

And in new residential developments, landlords may be granted a temporary CO from the Department of Buildings, and then fail to get a permanent one when that expires. Buildings without the appropriate CO can’t be legally occupied, so again, check your building’s status with the DOB if you have reason to be suspicious.

An apartment may be illegal if bedrooms have been added improperly.

“Landlords sometimes put up temporary pressurized walls to create illegal rooms,” Himmelstein says. “Rooms have to be a certain size and have a certain amount of light and air, and very often, these walls create a situation where you have a windowless bedroom, which is illegal.”

An increasingly common situation is landlords renting bedrooms, rather than apartments, directly to tenants. “That’s illegal—there should be no separate leases for rooms,” Himmelstein says. One of the main reasons this is against the law is that landlords in these situations place internal locks on the bedrooms that they rent out individually, creating a fire hazard.

“If there’s a fire and the only way out is through a bedroom that is locked, and it impedes your ability to escape, that’s a major hazard,” Himmelstein says. “This also violates anti-SRO laws, by turning Class A apartments into mini SROs.”

Finally, apartments are also rendered illegal for occupancy if the Department of Buildings or the Department of Housing Preservation and Development has put a vacate order on a building.

This situation often arises when a building has become structurally unsafe to occupy. Typically, the DOB will immediately issue a vacate order on such a building, leaving tenants a few minutes to take their essentials and then get out.

“When the city puts a vacate order on a building, it’s really a vacate and repair order,” Himmelstein says. “They’re telling the tenants they can’t be there, and the landlord that they have to fix this.”

Himmelstein’s firm handled a case like this for a building on East 34th Street that was critically damaged by a construction project next door. When tenants felt their building shaking, they contacted the authorities, who issued a vacate order. After negotiation, the landlord and developer paid for the tenants to relocate, and after repairs were made and DOB engineers convinced the building had been stabilized, they were restored to their apartments.

In cases like this, landlords can interpose one defense—economic infeasibility.

“The landlord could claim the cost of fixing the building would exceed any profit they could make. They would then be relieved of their obligation to restore the tenants. When that happens, the tenants could sue the landlord for damages if they can prove the problems occurred as a result of neglect,” Himmelstein says.

If you discover that your apartment is illegal for one of these reasons, you may be able to withhold your rent until the landlord remedies the situation. Keep in mind that there is the risk your landlord might sue you in response, which could land you on the tenant blacklist; there’s also the risk that if conditions in your apartment are determined to be dangerous, you’ll need to move out right away.

However, if you win in Housing Court, you could end up with the right to live in your apartment rent-free until the lease expires, or until the landlord remedies the problem. You could also end up being reimbursed to relocate, or even bought out of your apartment.

And if you are rent-stabilized, you would still have a right to a renewal lease, but the landlord might bring an eviction proceeding claiming that the use of the apartment is illegal—even if the landlord is responsible for that illegality. However, a Housing Court judge would likely order the landlord to legalize the apartment, and not evict the tenant unless legalization was impossible.

Related: 

Ask Sam: I just found out my apartment is illegal. What should I do? (sponsored)

Ask Sam: What happens if my building doesn't have a certificate of occupancy? (sponsored)

Ask Sam: What kind of problems qualify me for a rent abatement? (sponsored)

Ask Sam: How do I find out if my apartment should be rent-stabilized--and if the landlord owes me money? (sponsored)

Read all our Ask a Renters Rights Lawyer columns here.


Sam Himmelstein, Esq. represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts, and many other issues. He is a partner at Himmelstein, McConnell, Gribben, Donoghue & Joseph in Manhattan. To submit a question for this column, click here. To ask about a legal consultation, email Sam at [email protected] or call (212) 349-3000.

Alanna Schubach

Alanna Schubach

Contributing writer

Contributing editor Alanna Schubach has over a decade of experience as a New York City-based freelance journalist.

SEE MORE BY Alanna Schubach »
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.

topics:

Ask Altagracia basement landlords Rent rent laws renters roommates tenants' rights
SHARE
TWEET
BRICK’S PICKS
880 Fifth Ave., PHF, a two-bedroom co-op listed for $6.975 million
The pros and cons of owning a NYC penthouse apartment
empty nesters in modern kitchen
Empty nester checklist: What to consider if you are buying or renting in NYC
NYC apartment building with AC units
My neighbor's dripping AC is driving me crazy. What can I do?
Historic brick facades of NYC apartment buildings
Getting overcharged by a landlord? Here’s how the Tenant Protection Unit helps rent-stabilized tenants
Apartment buildings in Soho
New Rent Guidelines Board report justifies a rent freeze, tenant advocates claim
Brooklyn apartment buildings
Understanding net effective rent: Here's how to calculate your real monthly rent
Follow Brick on Instagram
@brickunderground | #brickunderground
Brick UndergroundBRICK UNDERGROUNDREAL LIFE. REAL ESTATE. REAL NEW YORK.
Social Links Footer
  • Facebook
  • Twitter
  • Instagram
  • Search
Main menu footer
  • Buy
    • The Market
    • Investing
    • New Construction + Condos
    • Affordable Housing
    • Co-ops
    • Negotiating + Financing
    • How to Buy in NYC Guide
  • Rent
    • Affordable Housing
    • Roommates + Landlords
    • The Market
    • The Search
    • How to Rent in NYC Guide
  • Sell
    • Staging + Open Houses
    • Negotiations + Closings
    • Getting Ready
    • How to Sell in NYC Guide
  • Live
    • Neighbors
    • Kids + Pets
    • Neighborhood Intel
    • Products + Test-drives
    • Troubleshooting
  • Improve
    • Small Spaces
    • Small Projects + DIY
    • Renovations
    • Design + Architecture
    • Products + Services
    • How to Renovate in NYC Guide

Get more news you can actually use...

Email Address

Delivered to your inbox weekly - for free.

*By signing up you agree to receive occasional emails on behalf of our sponsors

Footer Menu
  • About Us
  • Advertise

Copyright 2009-2024 by BND Ventures Inc | Privacy Policy | Terms of Service | Ad Choices | Login | Powered by Mortar CMS, the AI CMS