By Helen Klein
Who’s most likely to make a complaint about an illegal apartment? It turns out that it’s the tenant living in that apartment, knowing full well that the landlord isn’t legally entitled to collect rent for such an apartment, according to John Gallagher, the codes and zoning specialist at the Brooklyn office of the city’s Department of Buildings (DOB). There are savvy tenants who have figured out how to get living space for nothing, he explained. “There are people who move from illegal apartment to illegal apartment,” he told the crowd gathered at the Hebrew Educational Society, 9502 Seaview Avenue, for the February meeting of the United Canarsie South Civic Association. “They pay a few months rent, then stop paying the rent and make a complaint.” When the landlord receives a violation for an illegal apartment, Gallagher added, even tenants living in legal apartments in the building are not required to pay rent. It’s not that DOB is looking at random for violations, according to Gallagher. “As a rule,” noted Gallagher, “we don’t go out and look around for illegal apartments.” However, DOB, he stressed, is legally, “Required to investigate every complaint that comes in.” Illegal conversions, noted Gallagher, are, “Often a quality-of-life issue. It’s a question of additional families in the neighborhood and has a lot to do with parking, school overcrowding, sewers to carry the extra load, beyond what City Planning had planned for. There’s extra garbage, so very often illegal conversions are more than nuisances. They are a problem for city services.” There are many circumstances where a homeowner might receive a violation for an illegal conversion, said Gallagher. Creating an extra apartment included on the building’s Certificate of Occupancy is one, but so is using cellar space for living quarters (a cellar has more than half its height below the curb level, while a basement has more than half its height above curb level). “It’s never legal to occupy a cellar for living or sleeping,” noted Gallagher, although, he said, “You can play Ping-Pong or watch TV” in one. They are also legal for a variety of incidental uses – for storage, laundry, meters and the like. All things being equal, it may be possible to legalize living space in a basement, Gallagher said, “Given enough light and air.” To determine whether a lower level is a cellar or basement, and whether it is possible to legalize living space carved out in one, it is best to consult with an architect or engineer, said Gallagher. Even space being used in an otherwise legal fashion can receive a violation if work such as adding plumbing or wiring was done without permits. For instance, said Gallagher, while DOB generally allows two plumbing fixtures in a basement (which do not make it a separate dwelling unit), “Just because they are permitted, if the work wasn’t filed for, then you may have to legalize them,” he told his listeners. One variable is zoning. Changing non-living space into living space may cause the floor area in a home to exceed what is allowed by the zoning . In Canarsie, for instance, zoning is often R4 or R5. Both of these zoning districts, said Gallagher, “Carry with them floor area restrictions,” that could be exceeded in the use of a part of a building is altered. Similarly, if a home has a parking requirement under the zoning, changing a garage into living space may not be possible. In such cases, said Gallagher, “You can’t do away with the garage, unless you put it somewhere else on the lot, and very often that is not possible.” Seeing if an illegal conversion can be made legal, noted Gallagher, is a bit, “Like peeling an onion. There’s layer after layer of regulations. To make it legal, you have got to comply with all the rules. As we peel back the layers of the onion, we many find we meet one requirement, then find another one that stymies us.” If an illegal conversion can’t be legalized, the only recourse left to the homeowner may be to restore the space to its original condition, said Gallagher. That involves getting a licensed plumber and a licensed electrician to remove water lines and electric lines, he said. “Having an illegal apartment or any kind of violation is a very costly and time-consuming situation,” Gallagher concluded.
