Garden Duplex

If your lower level is zoned commercial, how are you using it as residential? Isn't that illegal in the first place? I don't think that any of the past matters when you file new plans. It only matters what you propose to do.

I also do not think you can sue the former owner. It's not their fault that you failed to do your research when you bought the place. Maybe you were the only poor soul who didn't find out the illegality of their place so that's why you "won" the bidding war.

Your Architect is smart. You can only have a powder room in the basement.

Posted by: guest at May 6, 2008 11:51 PM

New York City Administrative Code Section 27-2083 - Occupancy Of Cellars And Basements In Multiple Dwellings Erected After April Eighteenth, Nineteen Hundred Twenty-nine.

§ 27-2083. Occupancy of cellars and basements in multiple dwellings erected after April eighteenth, nineteen hundred twenty-nine. Except as provided in subdivision d of section 27-2082 of this article, no dwelling unit in the cellar or basement of a multiple dwelling erected after April eighteenth, nineteen hundred twenty-nine may be occupied unless: a. Every room in a dwelling erected after July fourteenth, nineteen hundred sixty-seven has a minimum height of eight feet, and in dwellings erected prior thereto has a minimum height of nine feet in every part, except that four beams each not more than twelve inches wide may extend a minimum of six inches below the basement ceiling. b. Every part of the ceiling of every such room is above the height of the curb level directly in front of each such part by not less than: (1) Four feet six inches for a room in a dwelling unit located in the front of the dwelling, or (2) Two feet for a room in a dwelling unit located in the rear of the dwelling. If the yard is sixty feet or more in depth, this requirement does not apply. Height above curb level is measured on the street on which the dwelling fronts. c. The level of any yard or court upon which a required window opens conforms to the requirements of subdivision eight of section twenty-six of the multiple dwelling law. d. Every room has at least one window opening upon a street, yard or court and is a part of a dwelling unit containing at least one room with a window opening upon a street or yard. e. A required window in every room shall comply with the provisions of subdivision c of section 27-2058 of article one of this subchapter, except that the total area of all windows in such room shall be at least one-eighth of the floor area of the room and the top of each window shall be located not more than one foot from the ceiling. f. Except as provided in subdivision g, not more than one apartment, as recorded in the certificate of occupancy, shall be located in the cellar unless the yard is sixty feet or more in depth. Such apartment shall contain no more than five rooms and a bathroom and shall be occupied either by the janitor or a rent-paying tenant, if no member of the family is under the age of sixteen years. No required window in any room of such apartment shall open upon a court less than five feet in width. Every part of the apartment shall be: (1) Within twenty-five feet of the inner surface of the front or rear wall of the dwelling, or (2) Have a window opening upon a court of the dimensions provided in subdivision seven of section twenty-six of the multiple dwelling law but in no event shall such court be less than ten feet in width. g. A maximum of three additional rooms may be located in the cellar exclusively for the use of persons regularly and continuously employed in the maintenance of such dwelling. Each such room: (1) Shall be completely separated from any other room or private hall; (2) Shall have access to at least one bathroom without passing through the apartment provided for in subdivision f; and (3) Shall comply with the provisions of subdivision f for required windows.

Posted by: guest at May 7, 2008 9:24 AM

I think you have to consult with an attorney regarding seeking recission from the seller. (I don't think restitution is the right type of remedy -- restitution usually means the return of money in order to make you whole, and because you have ownership of the property, you probably are already "made whole". Maybe you mean straightforward money damages.)

A lot of the analysis will rely heavily on the terms of the contract and other documents at closing. And yes, it may be length or costly to pursue, but if a decent remedy is available that may still be better than being stuck with an apartment that is nowhere near usable for you.

Posted by: guest at May 7, 2008 9:38 AM

Seems like you want to have your cake and eat it too. You want to put a full bath in the cellar/basement and 2 "rec rooms" because you want to use at least one of them as a bedroom with access to a full bath. In other words, you want to use it illegally. To fund this expensive venture, you want to sue the seller who had an illegal kitchen down there.

If you are suing anyone else shouldn't you be suing your own attorney and or inspector who didn't catch this situation during the due diligence period of the purchase. Or maybe you just didn't do your due diligence. Hmmmm.

Posted by: guest at May 7, 2008 10:50 AM

What 10:50 said. I find people like the OP amazing.

Posted by: guest at May 7, 2008 2:25 PM

What you're saying makes no sense, 10:50. Where does he say he -wants- to sue? He's reporting what his architect said. And nowhere does he imply he wants (or gains anything to speak of) by keeping the downstairs zoned as commercial. He's clearly stating his intentions and desired outcome, which is more than most people manage to accomplish.

Posted by: guest at May 7, 2008 3:30 PM

i have a new condo duplex (not illegal downstairs - cut out in back, and about 3 ft higher than curb in front - with lots of windows and egress). we put our bedrooms, laundry, storage and a full bath on the lower level (also have a small play area).

on the upper level, have kitchen connected to really big dining room with a lot of built-ins, a full bath, an office/guest room, and a big living room leading to the outdoors.

took almost 2 years of looking at condos to find a set up that we could configure like this (we did work moving rooms and plumbing around). BUT, it's everything that we wanted and more. the living room is on top of the master bedroom, so our child goes to bed and never hears us hanging out at night.

Also, soo quiet for sleeping and then 1000 sq. ft upstairs of light filled living space (have side windows).

see what you can do without having to file perhaps. do recommend our layout wholeheartedly though.

Posted by: guest at May 7, 2008 3:41 PM

3:30, what are you on about?

The OP clearly asks if they should sue:

"Should we stop all plans and look for restitution against the seller or just face it that we've been done as any legal case we may have would in practice be too expensive and lengthy to chase."

And no where in my post did I mention the commercial zoning so I obviously never accused him of implying anything about such zoning. Where did you learn to read?

Posted by: guest at May 7, 2008 4:22 PM

3:41 nothing to file... the bathrooms where there and clearly stated that the lower level could be used as bedrooms in the offering plan.

said it was not illegal, so not a totally great example, but just like the layout in general, hence, my story.

in a previous life (um, marriage) had actually lived in a brownstone, and really prefer having the big living spaces on one floor.

Posted by: guest at May 7, 2008 5:26 PM

The "downstairs" sounds like what is usually called "an english basement". There are all sorts of fire and building code reasons for not alowing a kitchen, notable ceiling height and % of space underground. Here in Brownstone Brooklyn, it is where most people put their bedrooms.

You can call it a cellar or a basement or anything you want - except a kitchen. If there was one there when you moved in, I am shocked. Be thankful and renovate around it - it was grandfathered in.

I wold be really pissed at my broker for not alerting me to these legal issues. isn't this covered under full disclosure?

Posted by: guest at May 7, 2008 6:21 PM

Nobody has suggested the real best solution: sell to some other sucker, find a new place and get it right next time.

Pay it forward, baby! Whoa!

Posted by: guest at May 7, 2008 8:35 PM

One thing that I have learned from numerous dealings with the DOB, both with renovations and new construction is that building codes are guidelines. If you can show that something can or should be done a different way, many times it will fly. I've even had inspectors fail something, or insist upon something that would cause such a problem that I've called a supervisor and had the supervisor overrule the field inspector ( and no, no money changed hands).

Posted by: guest at May 8, 2008 6:42 AM

I am not a lawyer and this is not legal advice.

If I'm understanding you correctly, you knew that on some level this set-up was not exactly kosher, is that right? I don't mean to sound accusatory, but this statement about your own due diligence leads me to that belief:

"Asking our attorney to make sure that everything about the apartment is legal for instance. They said its fine lots of hand waving and assurances that I shouldn’t worry and that I just don’t understand how things are work NYC."

That you're buying a legal dwelling should be a given for your attorney. The very first thing your attorney ought to have done is warned you that this apartment had an illegal kitchen set-up and that this sort of situation might arise in the event you undertook any sort of reno or re-sale of the apartment. They ought to have advised you against purchasing it for this reason. Were I to consider suing anyone in this instance, I'd look first at your lawyer. The brokers involved in this sale should also be disciplined, IMO. They took advantage of your naivete; it happens.

That said, you've already thrown good money after bad in this situation. If you choose to file suit against the seller, your own incomplete due diligence will become a central issue in the matter. (I was a paralegal for many years, so I know of what I speak.) Regardless of the outcome, you will likely be stuck with a rather hefty bill for legal services on top of what you've spent for your architect already, and that's before even considering what litigation would cost you if things escalated to that point. It's tempting to want to make someone else pay for landing you in this mess, but, ultimately, you made the choice to buy this unit knowing, it seems, that the set-up was potentially a legal issue. Also bear in mind that the remedy you seek in this is unclear - what is it that you want exactly? To be rid of the apartment? A refund of your purchase price and closing costs? Some sort of monetary award to cover the cost of reconfiguring the place?

Were I you, if you are determined to renovate, I'd look first at how you can reconfigure the unit to conform to code. Your architect is telling you they are not willing to be on the hook for illegal work. True, there are probably numerous basement/cellars all over the city that have been let or sold as dwellings while the city looked the other way; demand for housing is responsible for this practice, I'm sure. Doesn't change the fact that your architect wants no part of an illegal reno for obvious reasons that could potentially affect their business. Move the kitchen back upstairs and move your bedroom downstairs to the streetside of the unit, construct the rec room to open onto the garden, and settle for a powder room rather than a full bath. If you go to sell at any point, you'll be glad you did; you'd hate to be the seller to someone else that this seller was to you, wouldn't you?

A great, Brooklyn-based attorney who might be of help to you, if only to ease your mind, is Naomi Gardiner. I don't have her number in front of me, but several friends have used her for their RE needs and been wholly satisfied. Good luck.

Posted by: guest at May 8, 2008 10:03 AM

I guess I don't see what the big deal is about. If you want a kitchen upstairs, then put one in because that's what's legal. If you want a full bath downstairs, then put one in, but realize that you should make it a half bath when it's time to sell. If you want to sleep in your cellar you can even though it's not legal, but please don't put your kids down there without 2 means of egress. I'd hate to read about them dying in a fire they couldn't get out of.

Posted by: guest at May 8, 2008 10:48 AM

Simple solution:

1) If you plan to sell soon, do everything legally.

2) If you really want a full bath in the cellar, disign one that can be easily converted to a closet or some other use before you sell.

3) Forget about sueing anybody. The laws in New York protect the seller and legal costs would be prohibitive.

Figure out the simplest solution and don't worry any more. You're lucky you own a townhouse to begin with.

Posted by: guest at May 8, 2008 11:38 AM

Ah, thanks dprxxx. That makes sense now. Of course you're not trying to sucker anyone in to anything. And I get why this is a big deal to you - you feel like you got duped and, on top of that, you're being told you can't do with your own home what you want to do.

Still sounds to me like your attorney dropped the ball and the brokers were either uninformed or were pushing hard for the sale. I guess welcome to New York on that one.

"We instructed accordingly and Our Attorney did some kind of search (as I recall we paid hard cash for this, incurred the wrath of the seller accusing us of unnecessary delay and the repeated comments from our attorney that this is unusual in NYC and that by doing this we risked losing the property. None the less we insisted."

Huge red flag, at least insofar as your attorney goes. Their job is to protect your interests, not discourage you from having all the information you need to make an informed purchase. After all, what do they stand to gain? A couple of grand more quickly than if you hold off and buy a property without these issues? So what you risk losing the property? That's always a risk before you go into contract. Minimizing that risk and maximizing your bargaining power is your attorney's job. They're supposed to run interference between you and the seller. Guess we know why the seller was in such a hurry to close.

Your architect sounds like a stand-up guy. I'd talk with him leaving aside all these potential legal issues and ask for a straight forward estimate of what it would take to get the place up to code and improve its current layout while giving you max enjoyment now and re-sale value in the future. If, of course, you don't choose to walk away from all of this, leave it as is, and take your chances down the road.

Again, best of luck. Oh, and FWIW, do try to avoid litigation - it's just a complete hassle and it may cost you your enjoyment of a home you clearly love.

Posted by: guest at May 8, 2008 11:50 AM

Also, litigation will drag on for years, and if you do decide to move before it is completed, you won't be able to sell it to anyone.

Yeah, finding a new attorney at that point would have been advisable. (Brokers here are generally useless and you can't rely on them not to lie about everything.) Your attorney was telling you the truth about possibly losing the sale - but should have advised you better about that not being such a bad outcome in this case, given the issues. While it is true that much renovation is not filed, and you buy as is and it turns out fine, the cellar issue should have raised a red flag for your attorney in this case.

Many attorneys in these deals are looking solely at their own bottom line - that they won't get paid if the deal doesn't close - rather than being upfront and correctly advising their clients. (Those who are afraid they won't be paid for their work if a deal doesn't close are better off asking for a retainer to cover that possibililty.)

You gotta walk away when the professionals you hire don't answer your questions to your satisfaction, even if it means losing a place (as in those cases, that is often the best outcome for you.) You didn't, and it seems you can make it both code compliant and workabale for you, if not perfect.

Posted by: guest at May 8, 2008 1:53 PM

What was the lawyer supposed to do? He told the truth when he said that this is how things are done in brooklyn and when he said you could lose the place because the seller felt you were delaying the deal.

The seller probably is from old school brooklyn when things were done differently and there was never any problem with the DOB butting in. Today, for better or for worse, it is different to some extent.

This is the bind the lawyer is caught in. They tell you the truth that things are still just done any which way. They also checked to see that the renovations were signed off by an architect. Was the lawyer supposed to go in there himself to measure and see that it's a cellar rather than a basement? They checked with the DOB to see how an architect filed and it came up clean. You now have another architect saying it's not. This isn't your lawyers fault and may not even be the seller's. The other architect may simply have a different opinion.

As far as I can tell the only issue here is that you want a full bath and your architect says it's not to code. You can definitely find an architect and a GC who will help you put one in that can be converted back to a half bath when you want to sell. No big deal.

Posted by: guest at May 8, 2008 3:02 PM

If it's any help, we recently bought a brownstone and began planning a renovation, which we hoped would include a full bath on the bottom floor. Our architect reviewed DOB records, which said that the bottom floor was a cellar, and therefore, we could not legally put in a full bath. Just by looking at it, we were convinced that the bottom floor met the requirements for a "basement" designation. So we commissioned a fresh survey, and indeed, it came back our way. To this day, we don't know what the original "cellar" designation was based on, because we could not find any prior survey with that detail included. A survey is not that expensive, and if it comes back in your favor, it may solve some of your issues.

Posted by: guest at May 8, 2008 4:29 PM