Cellar bed/bath legality with a twist
Hello, We have an accepted offer on a two family brownstone. We are planning on renting the garden level and the cellar and have a question about the legality of the cellar bedroom and bathroom.
The issue is, the cellar is below the curb in the front of the house, but the garden/yard is lower than street level at the front of the house (i.e. the garden level needs stairs down to reach the garden). The “bedroom” in the cellar is quite large (can fit a king), has two windows looking out into the garden.
A few questions:
1. Given that the bedroom has windows, is large any chance it is legal bedroom? I assume not even if backyard below street level
2. The bathroom in the cellar has a shower, assume that is not legal as well?
3. Assuming both are not legal, in a rental listing, we should define this as a “rec room”? Anything else we need to do to cover ourselves?
4. Assuming both are not legal (and bathroom not to code) how worried should we be about these code violations? How are likely code violations addressed in contract/closing negotiations?
Many thanks, long time follower first time poster
sjq2102
in General Discussion 8 years and 5 months ago
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jimhillra | 3 years ago
> @
> Can someone define the difference between cellar and basement for me?
You have a first floor on grade level and a cellar because it is more than 50% below grade. There is no living, sleeping, cooking, etc. allowed in a cellar.
dwgriffi | 3 years ago
Hi sjq2102, I am now in a very similar situation in terms of having an offer accepted on a 2 bed brownstone condo garden apt whereby the 2 beds and 1 full bath are in the cellar. Had no idea that this was illegal and now have exactly the same questions that you did regarding living there and the issues I might face if I chose to rent it out. My biggest question is if I could list it as a duplex loft and just call the cellar bedrooms bonus rooms and just have them as empty spaces, or whether I’d have to remove the walls and return the cellar space back to its original offering plan layout with open space and just a powder room before I can sell or rent it? I’m also concerned with any code violations that the previous owner did (the one before the current one). Would love to hear your experiences and get some advice. Thanks so much!
Springs | 8 years and 4 months ago
Gross Living Area
The most common comparison for one-unit properties, including units in PUD, condo, or co-op projects, is above-grade gross living area. The appraiser must be consistent when he or she calculates and reports the finished above-grade room count and the square feet of gross living area that is above-grade. The need for consistency also applies from report to report. For example, when using the same transaction as a comparable sale in multiple reports, the room count and gross living area should not change.
When calculating gross living area
The appraiser should use the exterior building dimensions per floor to calculate the above-grade gross living area of a property.
For units in condo or co-op projects, the appraiser should use interior perimeter unit dimensions to calculate the gross living area.
Garages and basements, including those that are partially above-grade, must not be included in the above-grade room count.
Only finished above-grade areas can be used in calculating and reporting of above-grade room count and square footage for the gross livi ng area. Fannie Mae considers a level to be below-grade if any portion of it is below-grade, regardless of the quality of its finish or the window area of any room. Therefore, a walk-out basement with finished rooms would not be included in the above-grade room count. Rooms that are not included in the above-grade room count may add substantially to the value of a property, particularly when the quality of the finish is high. For that reason, the appraiser should report the basement or other partially below-grade areas separately and make appropriate adjustments for them on the Basement & Finished Rooms Below-Grade line in the Sales Comparison Approach adjustment grid.
For consistency in the sales comparison analysis, the appraiser should compare above-grade areas to above-grade areas and below-grade areas to below-grade areas. The appraiser may need to deviate from this approach if the style of the subject property or any of the comparables does not lend itself to such comparisons. For example, a property built into the side of a hill where the lower level is significantly out of ground, the interior finish is equal throughout the house, and the flow and function of the layout is accepted by the local market, may require the gross living area to include both levels. However, in such instances, the appraiser must be consistent throughout the appraisal in his or her analysis and explain the reason for the deviation, clearly describing the comparisons that were made.
SoSlope | 8 years and 4 months ago
chemosphere: That was really helpful. I didn’t know that it could be legal. Thanks for posting.
shahnandersen
in General Discussion 8 years and 4 months ago
You can sleep anywhere, including on the subway, but you cannot have a legal bedroom in a cellar. A cellar is defined by be 50% or more below legal grade as shown on the City’s official map.
boerum-hill | 8 years and 4 months ago
Can someone define the difference between cellar and basement for me? We just bought a small house with the front door at street level (no stoop or stairs). There is an internal staircase to a finished “basement” with a window out on the back. Is this a basement? Is this a cellar? Can you sleep down there?
resident2 | 8 years and 4 months ago
If the property is built on a slope where the front of the house (street level) is higher up the hill and the rear of the house is down the slope with above ground windows and rear exit door to the garden, it may well be legal living space. I have seen some houses like this in Sunset Park, Greenewood area.
Only the front area was considered cellar and the rear was basement.
chemosphere | 8 years and 5 months ago
Agree with above. Also many many people do sleep in these, illegally. Also a “3 fixture bathroom” in a cellar CAN be legal, as part of a duplexed 1st floor apt., even though the rooms adjacent are non-sleeping, “rec” rooms. Doesn’t mean that yours has necessarily had proper permits filed, but it can be done. http://www.nyc.gov/html/dob/downloads/bldgs_bulletins/bb_2011-010.pdf
shahnandersen
in General Discussion 8 years and 5 months ago
There is no twist here. There is no legal living space permitted in a cellar, even if the back yard has been excavated so there a windows in the rear room. The definition of a cellar is being more than 50% below LEGAL grade. Legal grade is shown on the official City map but is probably close to the level of the sidewalk in front of your house
sjq2102 | 8 years and 5 months ago
Extremely helpful really appreciate it Doug
dougb | 8 years and 5 months ago
Sounds like you’d want to ask the real estate lawyer about how to list it, and if the lease should have special language about use of the cellar space. In particular, if the apt gets shared with an off lease person who ends up renting the cellar bedroom you could end up with problems if this person reports that he’s renting an illegal cellar bedroom in your house. But if the garden level has both front and rear rooms that are legal bedrooms, then you could market it as two bedrooms, even if for practical purposes you consider one of those rooms to be better suited to be a living room. The windowed room in the cellar might be described in the listing as a windowed office or windowed bonus room?
sjq2102 | 8 years and 5 months ago
Many thanks Dave, very helpful. It sounds like there won’t be any issues with the lender, having done some research and according to your input as well. I suppose I was more wondering
1. If renovations were done without a permit in the past, i.e. current code violations, how should we think about that? I assume we are fine unless we want to do any renovations in the future and file permits and then we will get dinged on the old violations we inherited (such as a full bathroom in a cellar), and
2. When we list the apartment for lease, do we need to list it as a 1 bedroom with a rec room, and no list the second cellar bathroom either?
daveinbedstuy | 8 years and 5 months ago
First, is there a C of O and if there is, does the layout match it? If there is no C of O you won’t have any problems with the vast majority of lenders but if there is one and the layout doesn’t match it, you will. Code violations shouldn’t be an issue either unless there are open violations which will need to be closed. Not really clear how you are describing the cellar but it’s probably 99% certain that it is not legally habitable space. Get a knowledgeable BROOKLYN REAL ESTATE lawyer.