Neighborhoods That Most Need Basement Apartment Legalization Left Out of State Pilot

Gov. Kathy Hochul has a plan to bring New York City’s illegal basement and cellar apartments above board — but it won’t apply to homeowners and tenants in many neighborhoods where the need for legalization is most dire because of gridlock during Albany budget negotiations, sources say.

For years, homeowners and tenants alike have pushed to make these flood- and fire-prone underground rentals safer for tens of thousands of New Yorkers by bringing them out of the regulatory shadows. Mayor Eric Adams has also endorsed the idea of legalizing these subterranean abodes as part of a solution to the ongoing housing crisis.

But the city’s attempt to legalize and convert these homes, piloted in just one Brooklyn neighborhood, has been cost-prohibitive and near-impossible for homeowners without changes in state laws.

The state’s basement conversion pilot program, approved last week by the Legislature as part of the state budget, is meant to clear that red tape by waiving stringent elements of the state’s multiple dwelling law, allowing homeowners a pathway to legalize existing basement and cellar units by meeting city health and safety standards.

Under the state multiple dwelling law, property owners who want to convert basement apartments within existing two-family homes would be required to make a number of costly upgrades that advocates say do not improve basement safety — like digging out the building’s foundation to add a few inches of ceiling height.

Cellar apartments, on the other hand, would be banned altogether outside of the pilot program. (In New York City, a cellar is defined as being mostly below curb-level, while a basement is typically more than half above curb-level.)

The new Albany pilot will open up legal conversions to 15 community districts across the city.

“It’s big to have a quarter of the community districts in the city ready to take this project on,” said Sadia Rahman, deputy director of policy at Chhaya CDC, a Queens-based nonprofit that focuses on housing and serves South Asian and Indo-Caribbean communities. “I think the part that is frustrating and disappointing is that there are communities in Queens who equally, if not more, need a basement conversion and safety program.”

The pilot program, for example, would’ve been to no use for eight of the 11 people killed in their subterranean apartments during Hurricane Ida, including Yue Lian Chen, an 86-year-old woman who drowned to death in her Elmhurst apartment , and Darlene Hsu, 48, who never made it out of her Forest Hills basement .

The illicit nature of these underground apartments makes it difficult to accurately account for the number of basements and cellars occupied by residents at the moment. But of the 15 community board districts included in the pilot program, just one is located in Queens, where nearly 40% of the city’s estimated 376,478 basement and cellar spaces in one- to three-family homes are located — the most of any borough. By comparison, six of the pilot districts are located within Manhattan, where just about 1% of those subterranean spaces are located. Four each are located in Brooklyn and The Bronx.

“There doesn’t seem to be a city planning- or data- or climate-based study that was happening in the background that was informing these districts that we know of,” Rahman said.

“Part of the problem is that many of the neighborhoods — not all — but many of the neighborhoods where this pilot applies simply doesn't have the housing typology that would benefit from these reforms,” said Ryan Chavez, who directs a city-level pilot basement conversion program at Cypress Hills Local Development Corporation, located within Brooklyn Community District 5, an area excluded by the new state program. The neighborhood is also where Roberto Bravo, 66, died in his basement during Hurricane Ida.

That Brooklyn pilot program received overwhelming demand from local homeowners in Cypress Hills and East New York when it was launched in partnership with the city Department of Housing Preservation and Development in 2019, Chavez said. But the number of regulatory barriers triggered by the state’s multiple dwelling law, coupled with a budget cut during the COVID pandemic, soon meant that homeowners would be disqualified or eliminated one by one.

Though about 900 homeowners had initially inquired about the program, Chavez said, by last year, just five were able to remain active in the program.

“That’s why this latest announcement was so disappointing. This is a real missed opportunity,” said Chavez. “The state’s negligence is ensuring that tenants in basement units remain vulnerable, remain in harm's way and ensures their housing remains precarious, unstable, and at worst, and potentially unsafe.”

The governor's initial budget proposal would’ve created a pathway for basement legalization for all of New York City, because “we need every bit of space we can,” the governor said then. But a source familiar with the legislative budget negotiation told THE CITY that “this ended up as a pilot program because certain members made a fuss and refused to let their neighborhood be included.”

Hochul’s office did not comment on THE CITY’s inquiry about how the pilot areas were selected, and how the state plans to address concerns from tenants and homeowners in vulnerable areas.

As advocates like Rahman and Chavez decried the state’s decision to exclude many vulnerable areas in the pilot program, noting also a lack of transparency in the selection process, some state legislators say they were equally blindsided.

Jessica Gonzalez-Rojas (D-Queens), for one, said she is also disappointed in how the program has left out many areas of needs in Queens. She had expressed her support of the new pilot program to her colleagues, she added, and encouraged that her constituents in Astoria, Corona, East Elmhurst and Jackson Heights be included. Another source familiar with the matter also said that Corona was also supposed to be included in the program.

“But for some reason, they only included Community District 2,” Gonzalez-Rojas said, referring to a district including Long Island City, Sunnyside and parts of Woodside. “I wish I had more information, but I don't understand why the others were excluded.”

Only Affordable Option

Unregulated subterranean apartments have remained one of the most affordable ways to live in the city, Rahman said, which meant many working-class immigrants and people of color often turn to them for shelter despite risks of safety and sudden evictions, either by their landlords or by city agencies charged with enforcing housing and building regulations.

People are going to keep living in illegal basement apartments with or without reforms, she added, but “a program gives the city and experts the ability to go into these homes for safety assessments and inspections where homeowners don't have to be scared of fines, and tenants don't have to be scared of eviction.”

In Queens, however, a majority of basement tenants who seek legal advice for poor living conditions, evictions or agency vacate orders tend to live in areas excluded from the new pilot programs — like Corona, Elmhurst, Flushing, and many parts of southeast Queens, including Jamaica, St. Albans and Ozone Park — said Queens Legal Services housing attorneys Johnny Thach and Rob Sanderman.

Nearly half of all vacate orders issued for illegal occupancies were doled out in Queens, according to Department of Housing Preservation and Development records — more than any other borough. Not all vacate orders in the data are for illegal basement apartments, however advocates say the records roughly sketch a picture of the issue.

Tenants are “very often” unaware that their apartments are illegitimate, Sanderman said, and have less protection against evictions compared to a legal tenant. They also have little recourse to housing code violations, Thach added, due to fear of retaliation from their landlords, and because contacting city agencies means involving themselves in high risks of receiving a vacate order.

“I will say that all my clients that are living in basements, they really are struggling the most,” Thach said. “Oftentimes they’re undocumented, they’re low-income, and so they really are part of the housing crisis where rent is just too high, and it’s really all that they can afford.”

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