Basements and cellars are very different spaces and have different legal uses. A basement is a story of a building partly below curb level but with at least one-half of its height above the curb level. A cellar is an enclosed space having more than one-half of its height below curb level. Usually, if a cellar has any windows, the windows are too small for an adult to fit through.
Occupants of illegal basement and cellar apartments face potential dangers such as carbon monoxide poisoning, inadequate light and ventilation, and inadequate egress in the event of a fire. Occupants of illegal basement and cellar apartments may be ordered by the City to vacate or leave any illegal basement or cellar apartment.
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Basement and Cellar Occupancy Law
Basements and cellars differ in their amount of height above curb level. A basement has at least one-half of its height above curb level, while a cellar has less than one-half of its height above curb level. Usually, if a cellar has any windows, the windows are too small for an adult to fit through. Basements and cellars in residential properties of all sizes can NEVER be lawfully rented or occupied unless the conditions meet the minimum requirements for light, air, sanitation and egress, and have received approval by the Department of Buildings (DOB). You can check the Certificate of Occupancy on the DOB website to see if the basement you wish to rent is legal. DOB also posts Tips for Renters to help identify when an apartment is illegal.
A basement is a story of a building partly below curb level but with at least one-half of its height above the curb level.
Basements in one- and two-family homes can be lawfully occupied only if the following conditions are met:
Basements in a one-family home can be lawfully rented only if the following conditions are met:
Basements in a two-family home cannot be lawfully rented:
Cellars in one- and two-family homes can never be lawfully rented. Cellars in one- and two-family homes cannot be lawfully used for sleeping, eating, or primary.
Violations and Vacate Orders
Both HPD and DOB may inspect for illegal occupancy of basements or cellars. Each agency may issue violations for illegal occupancy conditions or issue Vacate Orders that the occupant leave the illegal space. If a Vacate Order is issued by either agency, the occupant is advised that they can receive relocation services through HPD. Property owners will be liened any costs incurred by the agency and provide relocation services (which may include temporary housing) to any occupants who receive these services. These costs can be significant.
If the Vacate Order is issued by HPD, the agency will notify the owner and occupants and provide an enforcement date. HPD will re-inspect the premises on the enforcement date to verify the illegal basement or cellar apartment is vacant and properly sealed.
Basement Apartment Conversion Pilot Program (BACPP)
HPD launched a pilot program, the Basement Apartment Conversion Pilot Program (BACPP), in partnership with Cypress Hills Local Development Corporation. BACPP provides eligible low- to middle-income homeowners living in one- to three-family homes in East New York and Cypress Hills, Brooklyn (Community District 5) with low or no-interest, or possible forgivable, loans to convert their basement or cellar into a safe, legal, and rentable apartment, based on altered building code legislation pass in February 2019, Intro. 1004. The homeowner is also provided with technical assistance needed to close on a loan and complete the construction project.