Confused: Cellar or Basement?
My husband inherited this low-stoop townhouse in Brooklyn from his grandfather few years ago. Recently We’ve been thinking about renovating what we call the “garden level” apartment. However, our architect told us since this is a pre-1938 building, there’s no C of O for it, except an I-card which can be used as substitute. But according to this I-card which was issued in 1911, the garden apartment is labeled as “cellar” and what we call “cellar” a “subcellar”. The space in question has a big window above grade on the front and fully to the grade on the back with full size windows and doors to the backyard. I know you need to have at least 50% of the space height above curb level in order to qualify as a basement. But in our case, although it seems the space is more below than above, we feel it might be a borderline basement because the front walkway is so pitched. My questions are: 1-How accurate are those old I-card assessment on this space? If it says “cellar”, should I even bother to hire a land surveyor to find out the exact elevation? 2-Should we apply for a C of O from DOB or this I-card is sufficient? 3-If it IS a cellar, does that mean the kitchen and bathroom his grandfather added to this space for convenience after he got sick and handicapped in the 80’s all illegal and need to be removed? (obviously no permits filed in those days). BTW, this cellar IS categorized as “living space” according to the I-card. Ceiling height is 7′. Thank you for your advise.
ashiny
in Building Code 11 years and 3 months ago
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15 replies
kslcb | 11 years and 3 months ago
BTW Ijust noticed that the landing page that links to this pdf contains the language Nintzk referenced. Is this text contradictory with the pdf on cellars being ok to occupy or am I not reading this correctly? Thanks http://www.nyc.gov/html/hpd/html/owners/illegal-conversions.shtml
kslcb | 11 years and 3 months ago
BTW – I just noticed that the very page that links to this pdf contains the language Nintzk referenced. Is this text on the landing page contradictory (on cellars being ok to occupy) with the pdf or am I miss reading this? http://www.nyc.gov/html/hpd/html/owners/illegal-conversions.shtml
kslcb | 11 years and 3 months ago
Nintzk – I am trying to figure out our options for our basement/cellar (TBD) as part of our renovation as well. You noted “Cellars in one-family and two-family homes can NEVER be lawfully rented or occupiedā but does not mention multifamily properties.” But I had an architect share the link below where it states it can be occupied but not rented; I’m not saying you are incorrect just trying to get less “confused” myself: Can the cellar of a one- or two-family dwelling be lawfully rented? No. A cellar CANNOT be lawfully rented. Can the cellar of a one- or two-family dwelling be lawfully occupied? Yes, but only by a current household member and under certain limited and specific conditions. Cellar rooms CANNOT be lawfully used for sleeping, eating, or primary cooking facilities by any member of the family or families who occupy a one- or two-family dwelling. However, a secondary kitchen for accessory cooking may be located in the cellar. Approval from the Department of Buildings must be obtained prior to installing a secondary kitchen in a cellar of a one- or two-family dwelling. http://www.nyc.gov/html/hpd/downloads/pdf/PreservationSvcsBrochure_BasementCellar-new.pdf
ashiny | 11 years and 3 months ago
Hi Nintzk. Thanks for sharing your story. Our house has been multi-family since day one. The garden level space is a little less than 50% above grade based on my non professional measuring. But with the pitch on the front walkway, it might be 50% or more above grade. Unlike yours, ours is not completely below grade. In fact, the big window on the front is completely above grade. Which is why I want to find out why it was labeled as cellar on the I-card. I guess we will have a surveyor come in to determine that. I know a change of c of o might not be the smart thing to do, at least for now.
nintzk86 | 11 years and 3 months ago
Ashiny, I have a similar issue with my property. I do not have a C of O and my icard says the cellar, which is completely below grade but has two full windows because the building has a deep cut out in front of the property, is “livable space.” Back in the early 20th century it was legal to have cellar apartments. Unfortunately, I have not gotten a satisfactory answer to their current legality. I did speak to one architect who said that the space is grandfathered in. In this circumstance, getting the C of O will backfire. From my conversation with another architect, if you get the C of O, the building basically has to be brought up to current code. That means that your cellar space would not be livable. If it ever was grandfathered in, it would lose that status. So if you don’t get the C of O, you run some potential risks, but if you do get it, you will not be able to create a separate apartment, which is the very reason you want it. Lastly, is this a 1 or 2 family property? Mine is a mult-family building, which could be an important factor because it says “Cellars in one-family and two-family homes can NEVER be lawfully rented or occupied” but does not mention multifamily properties. I would be very interested in any updates or information that you come across on this subject.
ashiny | 11 years and 3 months ago
Thank you Dave and ventilated for your input. We welcome all advise, both common sense and legal. As far as legality is concerned, of course we want to make everything right, provided it’s the necessary and cost-effective thing to do. We are fully aware of the DOB requirement on basement/cellar conversion.This is why we want to find out if our garden level space is a basement or a “cellar” as the I-card says.We may hire a local surveyor to find out and file for correction with DOB if it’s in deed a basement. But as far as the existing layout is concerned, we intend to keep everything as is with some cosmetic update. This might be the happy median between reality and legality. š
daveinbedstuy | 11 years and 3 months ago
I’m betting you have some sour grapes issue with something like this, ventilated. Reality is what it is.
ventilated | 11 years and 3 months ago
LOL. So you have an inside track on Brooklyn reality, Dave?
daveinbedstuy | 11 years and 3 months ago
If you’re using it for your own use, just use it. How many years did your grandfather do the same thing without problem?
daveinbedstuy | 11 years and 3 months ago
Reality is, ventilated, that if they are not seeking permits for additional work, it’s 99.999% certain that they can continue using the space as they want, especially since neighborts are doing so as well which means not a bunch of busy bodies looking to rat on people. Reality throughout Brooklyn housing is usually a far distance from the letter of the law. Also, as everyone knows, if a complaint is filed with the DOB, you just don’t let them in. To change the C of O will be a lengthy process and not cheap and, not certain. If OP wants to do so, best to start with an expeditor.
ventilated | 11 years and 3 months ago
You’d do well not to jump at advice from someone who’s “not a professional in these legal matters,” especially if they’ve never sought a DOB or LPC permit. Here’s what NYC has to say about illegal basement and cellar conversions: http://www.nyc.gov/html/hpd/html/owners/illegal-conversions.shtml
ashiny | 11 years and 3 months ago
Thanks Dave for your advise. Some of our neighbors are renting this space out as duplex with the parlor floor above) We are only going to keep this “cellar” space to ourselves. We also want to keep the existing layout (1 bedroom, 1 bath, kitchen and dining)done by my husband’s grandfather back in the 80’s sans permit, provided it won’t bite us in the “a$$” down the road with DOB.
ashiny | 11 years and 3 months ago
Thank you Jock. So we shouldn’t trust the wording on the I-card? Do we need to hire a land surveyor to prove it wrong? Or DOB will come do their own survey? Not familiar with this process. Is this considered a change of c of o then? BTW, we are only going to use the space for our own use.
daveinbedstuy | 11 years and 3 months ago
If you are going to use it for yourself, I’d just go ahead and use it, as you like. I’m not a professional in these legal matters so the rest of what I say is more along the line of common senseā¦If you are going to rent it out get some on-site opinions. The I-card is not encouraging use as an apartment which may bite you in the a$$ if a problem ever developed with a renter. Is the situation similar to other properties on the block and are they renting that space out?
jockdeboeraia | 11 years and 3 months ago
You will need to file and prove that your cellar is a basement. The FAR will need to be checked. A new C of O will need to be issued if correct.