In New York’s Fight to Legalize Basem*nt Apartments, What About Cellars?  (2024)

While Gov. Kathy Hochul included a pathway to basem*nt legalization in her February budget proposal, the word “cellar” is absent from her plan. The two terms may be indistinguishable to most property owners, but they’re different under zoning and dwelling laws, and excluding cellars from the state’s plan would omit a significant swath of below-grade housing stock from potential conversion, advocates say.

As state budget negotiations heat up, advocates are urging Gov. Kathy Hochul to consider a distinction that can boil down to a mere inch—the difference between a basem*nt and a cellar.

While a cellar and basem*nt may be indistinguishable to most property owners, New York City’s Zoning Resolution and state Multiple Dwelling Law categorize the two terms separately. To qualify as a basem*nt, at least half of the space must generally be above curb level. A cellar is at least 50 percent below the curb.

Rather than categorically exclude cellar apartments, the state should clear the way for the city to regulate them, said Howard Slatkin, a former deputy at the New York City Department of City Planning and now executive director of the Citizens Housing & Planning Council, a BASE member.

“A cellar with no windows is a completely different scenario from a cellar which is just a little bit more than 50 percent below-grade and maybe even has a walkout into the backyard kind of configuration, but it’s still technically a cellar under the definition,” he said. “There’s a broad spectrum of all of these conditions and the city’s program would have to establish basic requirements for light, air, egress and safety.”

Proponents of legalization say current requirements under the state’s Multiple Dwelling Law make a conversion nearly impossible, particularly for homeowners on a budget who might benefit the most from extra rental income. The law applies to properties with at least three units, meaning it kicks in when a two-family home seeks to legalize its basem*nt or cellar.

A 2019 pilot in East New York, Brooklyn, has laid these challenges bare. During a City Council hearing in late January, the New York City Department of Housing Preservation and Development testified that out of 100 homeowners who received a cost estimate, just five still remain in the program. Existing Multiple Dwelling Law requirements can push the price of a single conversion toward $1 million, officials testified.

But changing the state rules while excluding cellars would stifle that effort, as cellars appear to be prevalent across the city. Cypress Hills Local Development Corporation says it hired an architect to do visual inspections of about 100 homes in the East New York pilot. Of those, 70 were determined to be cellars.

The city still deemed these homes potentially eligible, albeit with special requirements including two exits leading directly outside.

In response to questions about the distinction between basem*nts and cellars, Mayor Adams’ team told City Limits that certain cellar apartments can be made safe, and that the city wants the authority, under state law, to regulate them, along with basem*nts.

The governor’s office did not comment on the omission of the word cellar in this year’s proposal. Her team has until April 1 to negotiate the state’s budget with the legislature.

It was not immediately clear if language regarding basem*nt and cellar legalization would be included in the Senate or Assembly budget rebuttals expected this week. Kavanagh told City Limits that he hopes to get the issue in his body’s budget resolution, given the governor’s focus on housing more broadly, but that he could also pursue it legislatively post-budget.

Because they are unregulated, basem*nt and cellar apartments are difficult to track and count. However, a 2021 BASE analysis estimated there are more than 30,000 such units across eight community districts in Brooklyn, Queens and Manhattan, all of which are majority nonwhite and rent-burdened. The units tend to attract low-income renters, including immigrants, who are priced out of other forms of housing.

Lack of regulation puts those tenants at greater risk, advocates say. Flooding during Hurricane Ida in 2021 resulted in 11 deaths in subgrade apartments across six buildings in New York City, bringing more urgency to calls for legalization.

According to the Department of Buildings, four of the six buildings had illegal cellar apartments, compared to two with basem*nts—one illegal, one legal.

City Limits spoke with a Queens tenant who lived for six years in a basem*nt or cellar apartment in East Elmhurst—he wasn’t certain of the distinction—and experienced a foot of flooding during Hurricane Ida. He asked that his name be withheld because he rented from family members, and because he is undocumented.

“I would not be able to live in the city if I didn’t live in a place like that,” the tenant said. Yet it was not pleasant. He described mold and dreary, dank conditions. Because of the informal setup and lack of alternatives, he didn’t feel comfortable making repair demands: “You always just don’t want to ruffle any feathers.”

Yet the tenant said he was opposed to legalization, for fear that it would result in policing and fines. “The people who end up being displaced, who cannot measure up to the regulation, are first generation immigrant families,” he said.

Sylvia Morse, program manager for policy at the Pratt Center for Community Development, said the BASE coalition is advocating for homeowners to be protected from legal consequences if they choose to upgrade their basem*nt and cellar units. The group is also demanding basic tenant protections.

“To some extent there could be that double-edged sword with legalization, but most of us live in housing that is legally recognized, right?” Morse said. “And I think the risks to those who don’t have those basic protections are greater.”

Proponents of legalization including Comptroller Brad Lander have called for mandatory smoke and carbon monoxide detectors, and backwater protection valves to prevent flooding from city sewers. City legislation establishing the East New York conversion pilot also set standards for ceiling heights, windows and egress.

Yet the campaign has vocal detractors, even setting aside the cellar versus basem*nt distinction.

Northeast Queens Assemblyman Edward Braunstein, chair of his body’s Cities Committee, raised safety concerns during budget hearings last month. “I just don’t understand how we’re going to make basem*nt apartments safer by not withstanding the Multiple Dwellings Law,” he said.

Warren Schreiber is president of the Queens Civic Congress, an umbrella organization for civic groups that has long opposed basem*nt apartment legalization. The Bay Terrace resident said doing so would “offer amnesty to all of the landlords who have been operating these basem*nt apartments illegally for all of these years.”

Supporters, though, still hope to see legalization make it across the finish line this year—with cellars included. “This distinction of removing all cellars is taking out the majority of units that can be legalized with our help,” Assemblymember Epstein told City Limits.

Analysis by the Pratt Center indicates that cellars may be more prevalent than basem*nts across the city, making up 71 percent of nearly 376,500 subgrade spaces in one-, two- and three-family homes.

However, the city cautioned that certificates of occupancy may misclassify basem*nts and cellars, making efforts to distinguish them needlessly confusing.

Ultimately, excluding cellars would bring new complexity rather than cut through the regulatory morass, according to Slatkin of the Citizens Housing & Planning Council: “A lot of homeowners would need to hire someone to tell them whether they have a basem*nt or a cellar.”