Can I rent or sell an apartment with an illegal cellar?
Ok, before anyone gets upset about this let me explain. I’m a first-time buyer and I just had an offer accepted on a 2-bed, 2-bath garden condo in a Manhattan brownstone. There’s just one problem – those two beds and 1 full bath are in the cellar. Of course, I knew nothing about the rules at the time. I didn’t even know it was a cellar. I thought it was a very nice basement. And maybe the original owner did too because they finished it as though they were trying to satisfy the regs. It has 8 feet high ceilings, windows in both bedrooms, and proper egresses (doors in each bedroom) that directly lead up to street level. It seems to be properly ventilated and has so signs of dampness according to the house inspector. But the fact is, it now appears all the updates in the cellar are illegal. So, my question is two-fold. Firstly, if I bought it and lived in it, what are the ramifications? It would just be me, my gf, and my stepson. There are no bedrooms upstairs it’s just open space and then an office leading out to the backyard garden area. I’m sure there are plenty of peop le that live illegally underground like this. In fact, I did it myself when I was renting a “basement” room in Brooklyn. Again, I had no idea that was classed as a cellar.
My second question relates to renting or selling it. Obviously, I can’t list it as a 2-bed, 2-bath like it is now. But could I list it as a duplex loft without first changing the layout of the cellar back to its original state? Could I just list them as bonus rooms or office space etc? If not, it would mean me knocking down the two bedroom walls to create an open rec room and getting rid of the full bath, and making it a powder, which was on the original offering plan and of course how the CofO states it should be used.
Lastly, am I likely to have issues with my mortgage in getting this place approved if I bought it? It’s all just empty rooms and a full bathroom right now. I assume the appraiser would not list the cellar in terms of bedrooms or sq ft at all and would only make a note in terms of extras.
I’m a first-time buyer and I am now super confused. I can’t believe the agent listed it as a 2-bed, 2-bath when they surely must’ve known that was illegal. But it’s a great space for a good price. Am I biting off more than I can chew and setting myself up for a world of pain? DOB fines and the like?
Help and advice, are greatly appreciated!
dwgriffi
in General Discussion 3 years ago
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18 replies
randolph | 3 years ago
if the bank has no issue lending to you in order to buy the property, and you feel comfortable living there, i don’t see the problem. when it comes time to sell or rent you will likely find someone interested in the property just as you are now. just make sure to have a clear financing contingency in your offer that is explicit about the potential issues that may arise with the appraisal.
alexwithak | 3 years ago
I have friends who owned a condo that was somewhat similar to what you’re describing, just bigger and one bedroom was upstairs. When they bought/sold it, it had to be listed as a 1br plus finished basement. But, like yours, the basement was extremely well finished with egress and a full bath. The front bedroom had a window well and the rear bedrooms looked out to a sunken terrace that had steps up to the grade-level yard and a door to one of the bedrooms. I’m not sure if all that somehow made it “more legal”, but they had no issue selling it. For your situation, you’d probably have to list it as a studio with finished basement/bonus rooms. You could have an expediter or architect who knows the codes advise you on the risks, but from what I know as long as you don’t raise any red flags to the city you should be OK. Homes with code violations are bought and sold all the time. I would say renting is much trickier.
As far as whether it’s safe or not, I agree with chemosphere that it’s hard to know without full details. There are good reasons to not allow basement bedrooms a nd they have to set some kind of standards around it. But there are also circumstances where it’s probably fine, even if it doesn’t follow the letter of the law. Probably ideal to have it evaluated so you know where it sits on that spectrum. If they say it’s outright dangerous, well then you’re in a tough situation. But if they say “it’s not code but it’s OK if XYZ”, then you just have to market it properly and the rest is up to a perspective buyer.
housepoor | 3 years ago
Although not the case for the OP, sometimes a space that would otherwise qualify as a basement (egress, windows, more than 50% above grade and so on) might still be a cellar simply because there isn’t enough zoning available. You cannot convert part of a cellar into a basement – it’s all or nothing. I have that situation and the cellar is the floor below the 1st floor – there is no basement in-between. There is plenty of light, egress, more than 50% above grade, etc. but it can only be used for storage, rec room etc. No sleeping or cooking.
cate | 3 years ago
All but one of the cellars where people recently died in a flash flood were below grade. Now that you mention it, I wouldn’t want to sleep in an English basement either.
chemosphere | 3 years ago
without knowing the details, I don’t think we can say that it’s dangerous. It’s certainly not legal in NYC, but it’s legal in many other cities. If it’s 49% below grade it’s legal and we wouldn’t say it was dangerous, so 51% below grade is arbitrarily different. The legal example could have poor drainage and terrible light and the legal example could have great drainage and great light.
cate | 3 years ago
This is outrageous. It’s a con. You can’t sleep in a cellar (more than 50 percent below grade). It’s dangerous. (Not to mention, you can count on having issues with pests, radon, dampness, water infiltration, and flash flooding.) How can it have windows/doors? Do you mean light wells with stairs going up to ground level?
shahnandersen
in General Discussion 3 years ago
There is no grandfathering for this situation as it was never legal. If you want to take a chance, go ahead, but if you get caught, in addition to the fines, you will have to flip the entire unit, butting the bedrooms and a full bath on the garden floor, a major expense. I would strongly advise against the purchase.
dwgriffi | 3 years ago
I’d say it’s fully below grade. It’s basically your standard garden unit below the parlor. So essentially the whole of the garden level is considered a basement since you step a couple of steps down off the street. Then a spiral staircase leads down to the cellar area that’s totally refurbed like a basement. The 2007 CofO clearly states the cellar should be used as a rec/storage area but the people that bought it back then modified it and turned the cellar into a living area with two bedrooms and converted the legal powder room into a full bath. Clearly, they got away with it cause they then sold it to the current sellers in 2013 who made no alterations. So max it could have been used like that is from 2007 until now. 15 years. Is that enough for grandfathering in? How would the DOB even find out about it unless I fall out with my neighbor and they inform them, etc.
dwgriffi | 3 years ago
I’d say it’s fully below grade. It’s basically your standard garden unit below the parlor. So essentially the whole of the garden level is considered a basement since you step a couple of steps down off the street. Then a spiral staircase leads down to the cellar area that’s totally refurbed like a basement. The 2007 CofO clearly states the cellar should be used as a rec/storage area but the people that bought it back then modified it and turned the cellar into a living area with two bedrooms and converted the legal powder room into a full bath. Clearly, they got away with it cause they then sold it to the current sellers in 2013 who made no alterations. So max it could have been used like that is from 2007 until now. 15 years. Is that enough for grandfathering in? How would the DOB even find out about it unless I fall out with my neighbor and they inform them, etc.
RobertGMarvin
in General Discussion 3 years ago
Radon gas might be a health problem I f you regularly sleep there
arewedoneyet | 3 years ago
Is it more than 50% below grade? I’d assume so since you say everything else is to code. If everything else is good you might be able to raise the floor a bit to make it more than 50% above grade making it a basement instead of a cellar. IF it’s been used as an apartment for long enough you might make a case to get it grandfathered – expediters have told me about this happening on rare occasions where there is documentation of habitation going back long enough.
dwgriffi | 3 years ago
So, say I bought it and slept in it. Are we likely to get in trouble? It’s not like a deathtrap illegal basement. It’s got 8ft ceilings, windows, light, ventilation, not damp and each room has a door leading directly to street level. It’s beautifully done. If it were a basement, it would tick all the legal requirements. But it’s not. I now understand it’s a cellar. So what risks are we running exactly? I’m sure there are plenty of owners that are living in their cellars and people renting them too. I just want to get an idea of the potential issues. And were I to rent it or sell it, I’d either advertise it as a duplex loft or 1-bed or if legally I had to, I’d knock down the two walls and convert it back to an open space rec so that it was totally legal. It’s a great amount of space for a pretty great price. But I don’t want to bite off more than I can chew.
dwgriffi | 3 years ago
So, say I bought it and slept in it. Are we likely to get in trouble? It’s not like a deathtrap illegal basement. It’s got 8ft ceilings, windows, light, ventilation, not damp and each room has a door leading directly to street level. It’s beautifully done. If it were a basement, it would tick all the legal requirements. But it’s not. I now understand it’s a cellar. So what risks are we running exactly? I’m sure there are plenty of owners that are living in their cellars and people renting them too. I just want to get an idea of the potential issues. And were I to rent it or sell it, I’d either advertise it as a duplex loft or 1-bed or if legally I had to, I’d knock down the two walls and convert it back to an open space rec so that it was totally legal. It’s a great amount of space for a pretty great price. But I don’t want to bite off more than I can chew.
shahnandersen
in General Discussion 3 years ago
The apartment has legal basement sleeping; NOT a cellar.
chemosphere | 3 years ago
our mayor sleeps in his cellar (or claims to) https://www.curbed.com/2021/06/eric-adams-gave-a-tour-of-his-apartment-does-helive-there.html
cate | 3 years ago
Run. If it’s a cellar, sleeping in it is dangerous, especially in a fire or flood.
shahnandersen
in General Discussion 3 years ago
How do you know that it is a cellar and not a basement? Are there windows in the front? If it’s definitely a cellar stay away! In any case, I doubt you’d get a mortgage for an illegal cellar unit.
ceci | 3 years ago
Walk away, you said it is illegal use!!! Nothing more to digest here!!!!