Handling Illegal Conversion Violations, Improving Tenant Safety
According to a report by the Pratt Center for Community Development, there are more than 100,000 units of illegally converted housing in the city. And Queens has the highest concentration of any borough, with 48,000 illegal apartments. An illegal conversion is the creation of one or more additional dwelling units within a home or building without the prior approval of, and permits from, the Department of Buildings (DOB). Sometimes, a home or an apartment may be illegally divided into individual single room occupancy units.
In many instances, the construction of these illegal conversions does not meet building code standards and the building may not be safe to occupy. These illegal conversions also pose a risk for firefighters, who search for possible victims in these spaces.
The dangers of illegal conversions recently came into sharp focus with a fatal Queens fire that caused the deaths of three men in early November 2009. In this particular case, there was only a single exit for the illegal basement apartments and a narrow hallway that was blocked by an obstructed apartment door.
An illegal apartment conversion is a serious offense under the New York City Building Code, and can result in fines up to $15,000 and up to one year in jail. “Each year, we receive thousands of complaints about illegal conversions and make thousands of inspections,” says DOB spokesperson Tony Sclafani. According to Sclafani, Queens has the largest number of illegal conversion complaints in the city. “When there is an imminent threat to public safety, the Department will issue a ‘vacate order.’ In 2006, we issued 738 vacate orders for illegal conversions citywide,” Sclafani says. “In 2007, there were 823 vacate orders issued for conversions—in 2008, the number was 1,086.”
Queens Borough President Helen Marshall admits that the problem is “persistent and perverse.” And she says, “Part of the reason for the proliferation of illegal apartments is that many owners and their tenants do not know what constitutes an illegal dwelling or how to seek remedies.”
To help owners identify and avoid conversion violations, we will provide an overview of the laws and procedures surrounding illegal conversions. It will cover when and how to correct an illegal conversion violation.
Illegal Apartment Complaints, Violation Notices
DOB is responsible for investigating complaints of illegal apartments. When someone files a complaint, DOB's Quality of Life Task Force will inspect the dwelling. If the inspector finds an illegal apartment or other violation of the Building Code, the inspector will issue a violation notice to the owner.
In some instances, the inspector can issue multiple violations that compound fines and can hurt an owner financially. One recent appeal in front of the Environmental Control Board (ECB) dealt with separate violations that were issued for illegal alteration and illegal occupancy. In this case, a DOB inspector found a studio apartment in a building cellar that violated the Certificate of Occupancy (C of O). DOB issued one violation notice to the owner for altering the building to add an extra, illegal dwelling unit; another violation was issued for altering the residence for occupancy as a dwelling from six to seven units, which was more than the legally approved number of families; and a third violation notice was issued for doing work without a permit. The owner claimed that the violations duplicated each other and asked an administrative law judge to dismiss them.
The judge ruled against the owner and fined him $4,650. The owner appealed and lost. The three violations were distinct and separate, and each required different proof. One violation was proved by occupancy contrary to the C of O even in the absence of any alterations. Another violation required a finding that an improper alteration resulted in occupancy by more than the legally approved number of families [2760 East 16th St., LLC: ECB App. Nos. 46843, 46915, 46916 (10/29/09)].
Sometimes the inspector cannot gain access to the home, and will leave a notice asking the owner to arrange for an inspection. If the owner does not respond, the inspector will return to the location at another time to try to gain access. If necessary, DOB can seek to obtain a warrant from the court to enter a building suspected of an illegal conversion.
When to Correct Illegal Condition
There are significant fines and penalties for illegal apartment conversions. If you have an illegal apartment in your building, you should take steps to correct the illegal condition before you receive a notice of violation.
If you eliminate the illegal condition before DOB conducts an inspection, you will not receive a violation notice and will not be charged with any penalties. If DOB conducts an inspection and finds a violation of the Building Code, you should take steps to eliminate the illegal condition immediately, because civil penalties can be imposed from the date of the violation notice until the date that the illegal condition is corrected.
What to Do If You Receive a Violation
If DOB issues a violation for an illegal conversion (NYC Building Code §27-118.1) or for work without a permit (NYC Building Code §27-147), the owner must correct all of the violating conditions. The owner may remove the illegal work or take steps to make the work legal.
In addition, the owner must attend a hearing at the ECB. The date and location of the hearing are noted on the violation. If you or your representative fail to appear at the ECB hearing, the case will automatically go into default, and the owner will be assessed the maximum penalty of $2,500 for each violation.
Also, illegal conversion violations may result in penalties for each day that the illegal occupancy continues (NYC Building Code §26-126(1)(e)(1))—until the date of the court hearing. The daily penalty can be as high as $3,025 for one illegal unit and an additional $2,250 for each extra unit.
To stop the daily penalties from accruing, the owner must stop the illegal use as soon as possible and file a Certificate of Correction with DOB's Administrative Enforcement Unit. While this will stop the penalty from growing, it does not resolve the violation. The illegal construction must be removed or be made legal.
Removing Illegal Construction
One way to correct an illegal conversion violation is to remove the illegal condition entirely. In other words, the altered space must be restored to its prior legal use or layout. This may require a permit to remove partitions, plumbing, fixtures, and entrances. In addition, all tenants in the illegal apartments must leave.
If this is the route taken to correct the violation, DOB recommends that you consult with a licensed architect or engineer before you begin. A permit may not be necessary to restore the layout if the walls are not load-bearing, structural stability is not affected, exits are not affected, and the room count is not increased. Otherwise, the architect or engineer can file the necessary plans with DOB on your behalf.
You should also have a licensed plumber file an alteration repair application (ARA) to remove the illegal plumbing fixtures, gas stoves, water or gas piping, and valves. In addition, a licensed electrician should remove all illegal electrical work.
Legalize Illegal Condition, If Possible
The only other way to correct an illegal conversion violation besides removing the additional apartments entirely is to file the necessary paperwork to legalize the illegal condition. To begin, you should hire a licensed architect or engineer. This person can check your building for zoning and code standards. He or she can determine if the extra housing units can become legal and what is required to do so.
Next, your architect or engineer must prepare design drawings and file an alteration application with DOB that covers the work that was already completed. There will be a filing fee based on the scope of the work and a civil penalty for performing the work without first obtaining a permit. If you are making alterations in addition to the work being legalized, your architect or engineer should submit those plans separately so that you do not pay a penalty for work that has not been done.
After your architect or engineer has filed and received approval of the application, your contractor may obtain a permit and perform any construction work that is required. Depending on the age and type of materials used to construct the house and the total number of dwelling units, this could include the installation of plumbing, sprinkler systems, handicap ramps, fire-rated doors, or walls.
After the contractor completes construction, your architect or engineer must obtain a new C of O from DOB. The C of O is a legal document that describes the lawful use and occupancy of a building, floor by floor. Before issuing the C of O, DOB will inspect the building to ensure that it conforms to the plans submitted by your architect or engineer.
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