Comptroller Brad Lander Proposes New Approach to Provide Resident Rights and Protections for NYC Basement Apartments

 

Modeled on NY’s Loft Law, this regulatory framework would require immediate basic safety interventions, protect tenants, & offer resources to building owners

Proposal is part of a longer-term path toward legalization

 Ahead of the one-year anniversary of Hurricane Ida, New York City Comptroller Brad Lander released a new report, Bringing Basement Apartments into the Light. The report outlines a path, to provide basic rights, responsibilities and protections for basement apartment residents and owners. Eleven New Yorkers drowned in their mostly-unregulated basement units on September 1, 2021, and many others were injured and lost their belongings.

Modeled on New York’s Loft Law, the “Basement Resident Protection Law” would recognize existing basement units, require owners to provide basic safety interventions like smoke detectors and backflow preventers and offer resources to install them, grant basic tenant protections, and establish a Basement Board to oversee these rights and responsibilities. This interim approach would work in tandem with existing legislative efforts to establish a pathway to improvements and legalization of many of the units, and with relocation of tenants from those that are most dangerous.

“Hurricane Ida tragically called attention to the precarity of tens of thousands of our neighbors living in basements, but one year later, we’ve done little to address it. Climate change means more flash floods are coming and fires remain an even more frequent deadly risk. Living without tenant protections means basement residents are constantly at risk of eviction without due process. We should act now to extend basement residents’ basic rights and responsibilities as well as require and aid owners to make lifesaving improvements – like smoke detectors and backflow preventers – while continuing to work on a pathway to legalization. This report, building on the example of New York’s Loft Law, shows how we can do it,” said Comptroller Brad Lander.

An Accessory Dwelling Unit (ADU) is a smaller, independent residential dwelling located on the same lot as another building, in which one of the units is the primary residence of the owner of the building. A cellar is a story in which 50% or more of the height from finished floor to ceiling is below the street grade and a basement is a story in which 50% or more of the height from finished floor to ceiling is above the street grade. New York State’s Multiple Dwelling Law (MDL), which is applicable to buildings with 3 or more units, prohibits any residential use in cellars but allows for residential use in basements as long as the unit complies with all other regulatory requirements.

The Comptroller’s report includes a geographic analysis to better understand the potential scope of flood risks facing one-, two-, and three-family homes with basements or cellars in New York City. The analysis indicates that about 10% of all physical basement and cellars (whether occupied or not) are currently facing some type of flooding risk. By the 2050s as storms intensify, a third of basements and cellars will be at a very high risk for coastal flooding and extreme rainfall. Due to data limitations, the analysis does not project how many of those units are currently occupied, but demonstrates the increasing risk posed to basement dwellers in the face of storms like Ida.

The report’s proposal is based on New York’s Loft Law, originally adopted in 1982, which was designed to address a similar crisis: an informal system that left loft tenants in previously manufacturing buildings without physical safety or legal protections. The Loft Law provided immediate protections and rights to tenants and established a comprehensive process for the long-term conversion of commercial and manufacturing buildings to legal, safe residences.

Like loft tenants of the 1980s, basement unit dwellers today (many of whom are low-income households of color) do not currently have any legal protections or rights to basic safety provisions. In the rare cases where the City does inspect because the units are illegal, the City has few options other than to issue a vacate order – which does not improve the residents’ situation and is infeasible at scale. Owners, many of whom are also immigrants and people of color renting out the units to earn additional income to keep a roof over their heads, often do not have the resources necessary to meet the regulatory burden to legalize the units.

Under the proposed Basement Resident Protection Law, all currently occupied basements and cellars would be recognized as existing and having basic legal status. Owners would be required to register their units. All occupants living in basement or cellar apartments – regardless of whether the owner registered the unit – would be recognized and receive certain rights. The Law would:

• Establish basic rights and responsibilities for basement dwellers and owners, including the requirement to provide basic services and the legal right to collect rent.
• Mandate and offer funding to owners for the installation of basic safety measures including carbon monoxide and smoke detectors, and backflow preventers to mitigate fire and flooding risks.
• Immediately protect tenants in interim units from harassment, eviction, and the denial of essential services and create new pathways for proactive enforcement and better data systems for the implementation of early flood warning systems.
• Provide a registration framework that supports and is coordinated with ongoing safety inspections and longer-term legalization efforts.
• Require the City and State to provide affordable housing to New Yorkers living in units deemed to be so unfit for living that they must be vacated.
• Fund language accessible outreach to both owners and occupants of basement units through community-based organizations.

The report is available here.

“With the one-year anniversary of Hurricane Ida, which resulted in the deaths of 11 New Yorkers and thousands more impacted, it is critical for our City to consider bold steps to prevent future tragedies caused by climate change. As a longtime supporter of legalizing basement apartments, I appreciate Comptroller Lander’s recommendations on steps to help make accessory dwelling units safer and provide services to tenants currently living in these spaces. Any new program established to legalize basement units and bring them up to code should be coupled with the necessary funding and regulatory change to adequately address outstanding barriers and concerns. The City should also simultaneously prioritize the improvement of storm sewer systems and additional green infrastructure to prevent dangerous flooding. This holistic approach is what New York City needs to save lives and address the housing crisis confronting residents. I look forward to working with my colleagues in government, community leaders, and all stakeholders to deliver impactful reforms that advance affordable housing and prevent tragedies during the next climate emergency,” said City Council Speaker Adrienne Adams.

“In the year since Tropical Storm Ida, Albany has yet to take any action to prevent more deaths among New York’s basement residents. The Comptroller’s proposal to require basic tenant rights and safeguards in basement units is an important step that state legislators can take on the path toward permanent basement legalization. We will not stop fighting until basement apartments are safe, legal, and affordable across New York City,” said the BASE (Basement Apartments Safe For Everyone) Coalition.

“Chhaya has been fighting on behalf of basement tenants and homeowners for 15 years. While we continue to organize for a citywide basement conversion program, we believe Comptroller Lander’s proposal would provide much-needed protections for tenants and would quickly increase safety in units that are homes to some of our most vulnerable neighbors,” said Annetta Seecharran, Executive Director of Chhaya CDC.

“Churches United for Fair Housing is proud to support the Comptroller’s recommendations for a new “Basement Board Law” to work alongside and in tandem with Assembly Member Harvey Epstein’s much needed long-term pathway to legalization for basement apartments,” said Whitney Hu, Director of Civic Engagement & Research for CUFFH. “Many of our members struggle to fight for basic rights and safety for their families living in basement apartments — but are unable to move due to the prohibitive costs of rent in New York City. The Comptroller’s straightforward and practical proposals will keep many of our members safe, with clear rights, and protections.”

“Tenants living in basements and cellar units urgently need protections against the deeply connected housing and climates crises,” said Cea Weaver, Campaign Coordinator at Housing Justice For All. “A full year after Hurricane Ida, it is long overdue to require property owners to install basic safety measures that would prevent further deaths in some of our most vulnerable and at-risk communities. Basement dwellers shouldn’t need to choose between staying quiet about unsafe conditions or risking a vacate order. The creation of a Basement Board is a critical step toward providing tenants with the right to basic services and immediate good cause protections.”

“For far too long, our clients and those who live in illegal basement and cellar apartment units have lacked basic rights and safety measures that put them at further risk of harassment, eviction, and potentially life-threatening climate events, such as flooding during hurricanes. We commend Comptroller Lander for presenting a comprehensive plan that proposes potentially life-saving interventions and also protects existing tenants from displacement and homelessness,” said Judith Goldiner, Attorney-in-Charge of the Civil Law Reform Unit at The Legal Aid Society.

Recent ADU and basement unit regulation background:

In 2016, the Basement Apartments Safe for Everyone (BASE) coalition won a pilot program to legalize basement and cellar units in the community rezoning of East New York, Brooklyn, which resulted in the passage of Local Law 49 in 2019 sponsored by then Council Member Brad Lander. Unfortunately, due to the extensive work needed to fully legalize the units, the steep challenge of compelling action among homeowners renting units illegally, and then-Mayor Bill de Blasio Administration’s near elimination of the program through severe COVID-19 budget cuts, only eight homeowners remain active in the program.

During this past session in Albany, Senator Pete Harckham and Assembly Member Harvey Epstein introduced A-4854/S-4547, legislation that would require localities across the state to amend zoning and building codes to ease the creation of legal ADUs, including basement and cellar units as well as garage units, backyard cottages, granny flats, and other types of ADUs that are common across the State but less so within New York City.

While the BASE Coalition and Mayor Eric Adams’ Administration support the legislation, it did not pass during the 2022 legislative session. Comptroller Lander strongly supports this legislation and is working with the BASE Coalition, State legislators, and the Adams Administration toward passage in 2023. The proposed Basement Resident Protection Law would work in tandem with this legislation. A legalization law would amend zoning and building codes to create a pathway to improvement and full legalization; the proposed Law would establish rights, responsibilities, and basic safety protection in the interim.