Basement Apartment Rules Get Low Marks From Housing Experts

by Samantha Maldonado

This article was originally published on December 8 at 5 a.m. EST by THE CITY

In an office building in downtown Manhattan, an 8-foot-long banner stretched across the length of a fluorescent-lit hallway.

Five-inch-tall red letters indicated the location of an entrance to a basement apartment, as required outside each unit. That’s according to proposed rules from the Department of Buildings for a pilot program to legalize those illicit spaces. 

The rules specify both the color and 5-inch height of the letters on the sign.

The requirement is “cartoonishly absurd,” said Howard Slatkin, executive director of the Citizens Housing and Planning Council, which commissioned the large banner’s creation.

It’s one of several such measures in the proposed rules from the Department of Buildings that safe housing advocates say impose obstacles or make it untenable for homeowners to participate in the basement legalization pilot program. 

Those regulations, along with a related set from the Department of Housing Preservation and Development, also open up tenants to the possibility of losing their homes and homeowners to costly penalties if they do not complete the program, advocates and lawyers warn.

“These rules cannot be passed as is, or else the program will fail,” said Sylvia Morse, director of research and policy at the Pratt Center for Community Development. “If these rules are passed, they do not set up the program for success.”

The program is meant to allow homeowners in several designated neighborhoods to transform unauthorized spaces into above-board apartments without triggering stringent requirements of the state’s multiple-dwelling law — while letting tenants continue to live there. Over a 10-year period, the owners must take a series of actions, like installing sprinklers and getting permits for exits, in order to eventually obtain legal status for the apartment.

“This rule, as it is outlined here, would ensure that no one registers and comes out of the woodwork because it’s too risky,” Slatkin said. “They heighten the risks rather than soften them, which is the whole point of the program.”

Buildings Department spokesperson Andrew Rudansky said in a statement that the pilot program’s rules were “carefully considered, with a focus on providing a safe space for existing tenants to live while the landlord works to bring the apartment up to code,” and that the DOB would take feedback into account if it revises the rules.

Basement apartments have long served as affordable, albeit potentially dangerous, living options for many New Yorkers. The spaces are prone to fires and floods — which proved deadly when 11 people drowned during 2021’s Hurricane Ida. After that, the push to upgrade basements and bring their residents out of the shadows gained momentum, building on the sustained work of the Basement Apartments Safe for Everyone (BASE) Coalition. 

The new effort also builds on Mayor Eric Adams’ recent “City of Yes” zoning changes, which allow so-called accessory dwelling units, or ADUs, in many neighborhoods — including basement apartments.

But delivering results may prove difficult, as a 2019 basement legalization effort showed: not a single homeowner made it all the way through the program. 

Local officials have framed creating new apartments in basements and authorizing existing illegal living spaces as important means of bringing necessary housing to the market amid a historic crisis. 

A new report by the Center for New York City Neighborhoods spotlights basements as particularly promising among possible accessory dwelling units, which also include attic apartments and backyard cottages. Brooklyn has the highest concentration of buildings where legal basement apartments could be located, followed by Queens and The Bronx, the report found.

“From an equity lens, these are the types of ADUs that have the greatest potential to support homeowners and tenants who may be in low- and moderate-income communities,” said Margaret Hanson, CNYCN program manager. “Tens of thousands of New Yorkers are living in basement apartments already, and there’s a path to legalization now.”

The Kitchen Sink

Hanson emphasized that the city’s implementation of the regulations, guidance, and structures related to ADUs will determine whether and where such units proliferate.

Eligible homeowners may apply to be part of the basement legalization pilot program until April 2029. But beyond mandates for massive signage, the proposed rules present other catch-22s for owners.

For instance, basements that are eligible for the pilot program must have a kitchen with a window, a sink with running water, and gas or electricity.

“You can’t get a permit to install a full kitchen before you have legal status,” Slatkin said. “How are you supposed to put all that electrical and gas work in and up to code if you can’t pull a permit to do it?”

The proposed rules indicate that illegal gas work, as an example of a condition that could pose a safety risk, may be cause for a vacate order — meaning tenants would be kicked out.

The rules also do not include a clear way for homeowners — who as part of applying for the pilot have to admit to the city that they have an illegal apartment — to exit the program or decline to participate without the risk of penalties or prosecution.

Land use lawyer Rob Huberman, a partner at the firm Herrick Feinstein, called that “draconian.”

“There really is no amnesty and there is no off-ramp,” he said. “It is an assume-at-your-own-risk type of deal. You’re outing yourself by entering into the program.” 

In a 2019 basement legalization pilot program focused on East New York, Brooklyn, only one homeowner of the hundreds interested was able to begin the necessary construction to make the apartment safe and legal. But now that work is suspended and the homeowner is pulling out because of an unrelated, unresolved violation, according to a new report from the Citizens Housing and Planning Council.

Other homeowners dropped out of the East New York pilot program even before construction could start because of projected costs piling up. 

The challenging and costly nature of the undertaking could prevent other homeowners from fully legalizing their own basement apartments in the new pilot program.

There are questions, too, surrounding the fate of current tenants of those illegal basement apartments if the homeowners decide to participate in the new program.

Separate rules proposed by HPD  give tenants of such apartments in the pilot program  the right to return if they must leave during construction. But the proposed rules only apply to tenants who have been living in the space since April 2024 and owners need to give 30 days’ notice to tenants before they need to leave. If they don’t depart, they forfeit the right to return, unless they request an extension from their landlords.

Morse, of Pratt, pointed out that a month is not enough time for tenants who are likely low income and already facing barriers in the housing market to find a new living space.

“It’s important there’s steps for how to move forward the upgrade and construction process, but there isn’t really information here about the grounds for granting an extension,” she said. “How much latitude does the landlord have? Can they deny an extension request for any reason, or do they need to defer towards providing it if someone can’t find housing?”

DOB and HPD will hold public hearings on the proposed rules Thursday and Friday, when the opportunity for public comment closes.

Related Stories

• Homeowners Ready to Legalize Basement Apartments Stuck in Red Tape
• In New York There Is a Legal Difference Between a Basement and a Cellar
• Report Shows Little Progress in East NY Pilot Program to Convert Illegal Basement Apartments

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