Garden Duplex
Many posts get close to the issue that we’re facing but I wanted to start another because I’m sure there are many people facing the same issue. We bought a condo apartment last year. A ground floor and basement/cellar duplex at the back of the typical 5 floor+ building built pre war on the foundations…
Many posts get close to the issue that we’re facing but I wanted to start another because I’m sure there are many people facing the same issue.
We bought a condo apartment last year. A ground floor and basement/cellar duplex at the back of the typical 5 floor+ building built pre war on the foundations of a brownstone. The basement/cellar retains the original Brownstone walls.
The apartment had been remodeled to have a bedroom, living room and bathroom on the ground floor and the Kitchen/recroom + powder room down stairs. Both floors have doors to the building stairway (having been separate units in the past). Downstairs is zoned as commercial and upstairs is zoned as residential. Downstairs has a rear door opening onto a back yard, L shaped across the back and along the side 20 feet each and about 15 feet wide. This area backs onto restaurants and a gym business and has a 10 foot high canvas wall (which we plan are replace with soundproof walling to reduce AC fan noise – 4 fans)
We’ve retained an architect to advise us on remodeling the apartment and yard. We want two rec rooms and full bath down stairs and Kitchen and through open sitting room upstairs with a powder room.
This is the issue and my question.
We’re advised that there should not be a kitchen down stairs and our remodeling would entail DOB inspection requiring us to remove it and put it upstairs (all plumbing it still upstairs although blocked off). The Architect advises us that the apartment had an illegal kitchen when we bought it and as such we may have a claim against the seller or their agent because without a legal kitchen it’s not an apartment. Also. Despite the fact that the only plans in existence (included in the offer documents) of the apartment show a full bath down stairs which has obviously been removed and replaced with a powder room we’re also advised that we cannot replace the powder room with a new full bath.
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.
I’d add that i think the downstairs is a cellar rather than a basement (More than 50% below the level of the front side walk) but as i said above is zoned commercial and shows as a doctor’s office in offer documents.
I’ve done my best to search the DOB website but can’t find any plans for the apartment. The architect and expeditor (who’ve now spent almost $12k of our money) say that the DOB has lost all plans for the apartment.
Any help/advice very much appreciated.
Thanks for the sugestion 4.29pm, 5/8
Sorry for the delayed reply. we’re on vacation.
Can you tell me the requirements that distinguish a basement from a cellar please? I recall someone in another post comenting that at least half of the room must be above grade but i don’t know any more than that. Also. Grade is taken as the sidewalk level at the front of the building i believe. Is this the case for a rear basement/cellar too?
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.
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.
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.
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.
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.
The missing part of this puzzle is the condo board, who you don’t mention. Fyi, much brownstone construction around here is under the radar, no filing with DOB and no CO. So in a house you could probably just do what you want and take your chances. Quite often when you sell, it’s ‘as is’ and the seller takes what he gets and deals with the problems, if any. We certainly did, in a house which had been a rooming house, and had neither a CO or a CNO.
But in a condo, the board is usually more stringent than the DOB. So what do they say about this issue? I’d think they were concerned about the commercial property being used for residential?
Guest. 10.03.
Thanks. A little context might help here. We’re from the UK and have no experience of buying property in NYC before this. In the UK I’ve bought and sold many times and standard practice there is that if I were to ask my Attorney to make sure that everything was legal about a property then that’s what they must do.
Typically this results in a search to make sure the seller owns the place and that there are no plans in place to build a sopping mall right next door etc. This would also reveal whether the building had been altered and that alterations were carried out in accordance with ‘building regs’ – Code in NYC.
Our concerns related to the fact tat the selling materials described the cellar as having commercial R5 zoning and we wanted to make sure we were allowed to use the cellar as part of a residential property. Frankly I wanted to make sure that some inspector was not going to turn up one day and demand to see evidence of my doctors business.
I added that while they were at it I’d like to know that all renovations were to code too.
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.
What we got back from our attorney was that everything is fine.
I now believe that this advice was strictly correct because (1) the COO confirms that the cellar is part of the ground floor residential property and can be used as such as a recreation room and (2) the renovation work was ok’d by the DOB under directive 14 – Architect self certification. The fact that this self certification seems to have been in breach of code would not have shown up and of course it was only after closing that we’ve discovered NYC cellars should not have kitchens.
As for what we want to achieve. Well we like the apartment and the location and have no plans to leave NYC any time soon. We bought it with in intention of improving it.
Now, however, and knowing more about code requirements the options for improving the place are much less attractive so while we’ve not given up on the idea we may well just leave it as it is.
A concern is that if we make no changes what happens we do sell or possible rent the apartment out? Asking ‘who could we sue’ is really ‘who could sue us’.
I don’t want to, as has been suggested, find some other sucker sell the apartment.
This post has been very helpful. I’m left with the thought that Directive 14 leaves a aping hole for people unfamiliar with the regulation to fall in to. If an architect certifies against code then the buyer and the seller and the DOB and the attorney can be caught out.
Guest. 10.03.
Thanks. A little context might help here. We’re from the UK and have no experience of buying property in NYC before this. In the UK I’ve bought and sold many times and standard practice there is that if I were to ask my Attorney to make sure that everything was legal about a property then that’s what they must do.
Typically this results in a search to make sure the seller owns the place and that there are no plans in place to build a sopping mall right next door etc. This would also reveal whether the building had been altered and that alterations were carried out in accordance with ‘building regs’ – Code in NYC.
Our concerns related to the fact tat the selling materials described the cellar as having commercial R5 zoning and we wanted to make sure we were allowed to use the cellar as part of a residential property. Frankly I wanted to make sure that some inspector was not going to turn up one day and demand to see evidence of my doctors business.
I added that while they were at it I’d like to know that all renovations were to code too.
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.
What we got back from our attorney was that everything is fine.
I now believe that this advice was strictly correct because (1) the COO confirms that the cellar is part of the ground floor residential property and can be used as such as a recreation room and (2) the renovation work was ok’d by the DOB under directive 14 – Architect self certification. The fact that this self certification seems to have been in breach of code would not have shown up and of course it was only after closing that we’ve discovered NYC cellars should not have kitchens.
As for what we want to achieve. Well we like the apartment and the location and have no plans to leave NYC any time soon. We bought it with in intention of improving it.
Now, however, and knowing more about code requirements the options for improving the place are much less attractive so while we’ve not given up on the idea we may well just leave it as it is.
A concern is that if we make no changes what happens we do sell or possible rent the apartment out? Asking ‘who could we sue’ is really ‘who could sue us’.
I don’t want to, as has been suggested, find some other sucker sell the apartment.
This post has been very helpful. I’m left with the thought that Directive 14 leaves a aping hole for people unfamiliar with the regulation to fall in to. If an architect certifies against code then the buyer and the seller and the DOB and the attorney can be caught out.