Monday, July 13, 2009


As we now know all too well, many Americans are struggling to make their mortgage payments, while others are in desperate need of affordable housing. Enter the so-called mother-in-law apartment, which can fix both issues: Homeowners can fetch extra cash and in the process provide decent, below-market rentals. But can you convert your basement to an apartment? Each town has it's own code but many are similar to the Town of Hempstead's which only permit a single family home to be converted to a two family home under the following conditions: a) a permit is issued and plans approved and b) the second unit is used by a parent, child or sibling of the homeowner or the owner of the house is a senior citizen and obtains a special two-family senior citizen residence permit. If you don't follow the rules of your town, etc., it is an illegal apartment. Besides the danger of being fined by your local building department and the inability to collect rent in a non-payment proceeding (you cannot sue in court for rent of an illegal apartment), your insurance policy may be in danger (certainly an issue when people are injured on your property, there is a fire, etc.) as the insurer may disclaim coverage and your mortgage company may claim a default. In a recent landlord and tenant case, I spoke to the Town of Hempstead Building Department and they stated that under no circumstances, will they grant a permit for a basement apartment. You should note that the rules appear to permit the letting by a family of one (1) or more rooms to not more than two (2) boarders, roomers or lodgers, provided, however, that every room in such apartment shall have free and unobstructed access to each required exit. The applicable statute in the Town of Hempstead is Chapter 88: HOUSING AND REHABILITATION CODE.


  1. How do we combat this problem? We are so congested here in Franklin Square due to illegal renters that it has become unbearable. The TOH has not done anything to address this issue.

  2. Thank you for your comment.

    Here is what's happening in Queens but it is an issue in many communities and there are many arguments pro and con:

  3. Jon, in looking for options for my senior mom in the Village of Hempstead, I'm desparatey trying to understand the law.

    She can more readily receive approval for a senior two family, then a formal two family setup. But this may only be applicable outside of the Village?

    If it is accessible, then she can rent the second unit to anyone or just to another senior?

    Also, the law suggests that the improvements, ie...second kitchen in the accessory unit, must be removed if the unit is vacant after 90 days and will be inspected.

    That doesn't sound like major construction to me.

    Also, we would like to split her parcel and sell off one half for another residence. The building code says it needs to be 6,000 sq ft. We have 5,000. What arguments are good to bring in front of the appeals board for greater success. There has been very little construction in her community until recently. I'm hoping that this is a pliable moment for change.

  4. To MDL:

    Thank you for your comment.

    A licensed architect and contractor may be a good place to begin when dealing with a conversion from a single family to a two family.

  5. We recently found out that an assistant district attorney is renting a few blocks away, and several of the homes are owned by folks that work for the town. Hopeless.

  6. To Anonymous:

    There is no law that I am aware of that prohibits a homeowner from renting out the entire home. The restrictions are on renting out apartments in the home.

  7. These are basement apartments.

  8. Thank you for your comment.

    There are several ways people have addressed the issue in their neighborhood. The first is to file a complaint with the local housing authority.

    Homeowners who rent out illegal apartments discover that when the tenant fails to pay rent, they may not be able to collect it in L&T court.

  9. Is it legal to have a two family home in a business zone in the Town of Hempstead? I read in the code online that you could, however my attorney said you need to have a lot size of 12,000 feet minimum. I am looking to buy a home that has two apartments already that has not been legalized and planned on bringing it up to code. Also can the town a any time rezone land from business to residential on a whim, without thepermission of theproperty owner?

  10. Thank you for your comment.

    Your attorney may have been basing his opinion on the type of district the property is in. The Town of Hempstead, outside of incorporated villages and cities, is divided into many districts which have different ordinances as set forth in the Building Zone Ordinances. The procedure for zoning changes are also set forth online.

  11. I just recently found out, by accident, that my apartment is illegal. A note was left on my landlords door by the Buildings Department to "Cease illegal occupancy immediately". It is a single family home, and I live upstairs with my 13 and 14 year olds.
    I am told I now have 3 to 6 months to get out. I paid a realtor for the finding of the apartment 4 years ago, and hadn't planned on moving until my kids graduated high school. Had I known it was illegal, I NEVER WOULD HAVE MOVED HERE. What are my options now? Is there any was to recover any of my money to help me move? Can I sue the landlord for back rent paid for not being honest? And what about the realtor, can they be held accountable for anything?
    I now have to move my kids in the middle of the school year, try to stay in the district, and if I cannot, hope that the district I move to has the Special Education program that my older child needs. This is REALLY unfair, and I did not ask for this to happen, but now I'm stuck. HELP!

  12. To realangry....:

    An attorney can discuss with you your possible options; however, you should remember that, as a general rule, a landlord can only evict you after it commences a L&T proceeding (you will be served by a process server), a hearing is held (unless you default), obtains a judgment of eviction and warrant and then only after a sheriff posts its 72 hour notice. And even then, only the sheriff can forcibly remove you.

    Again, consult with an attorney regarding your rights.

  13. Mr Probstein, Your blog is very helpful. Is it legal to rent out rooms in a private owner occupied home, as long as the tenants have access to proper exits? Is a permit required? Anything else relevant? I really appreciate your time and effort with this website!

    Town of Hempstead Resident and hopefully, future client :)

  14. Thank you for your comment.

    As a general rule, although each town rules, co-op board, condominium association, etc. should be consulted, you can have a roommate and/or boarder. When you have more than one, other issues may arise. Again, you should consult with the entities that govern.


  16. Thank you for comment.

    If I was representing the boarder, I would argue that the boarder is a tenant subject to the usual landlord/tenant rules. If I was representing the owner, I would point out that in New York City, , if a guest has been living in the apartment for over 30 days, then the Unlawful Eviction Law prevents tenant or landlord from any self-help remedies to evict the guest, even if he’s not technically a tenant. See NYC Admin. Code 26-521.

    Also note some of the discussions above.

  17. I'm a little confused about the regulations in the Town of Hempstead (NOT AN INCORPORATED VILLAGE) re renting in my owner occupied 1-family house.

    I and my spouse are 64, and have heard that we may get a permit to rent in our home. These are my questions:
    1. What age does the owner have to be to get this permit?
    2. Is it called "Senior Residence Secondary Apartment Permit"?
    3. What is the difference between renting with this permit, as opposed to just renting to a boarder or two?
    4. Is any permit required to rent to boarders?
    5. Is any permit required if there is no stove and/or kitchen sink in the rental space?
    6. Are basement rentals ever permitted in the Town of Hempstead?
    7. I saw on the Town's website that there are affidavits that the tenant and the landlord must sign -- what is the tenant swearing to? what is the landlord swearing to?
    8. Are there any income criteria that the landlord must meet in order to be eligible to qualify for that secondary apartment permit, and if so, what are those criteria?
    9. Are property taxes increased because there is an apartment?
    Thank you in advance for your assistance.

  18. Thank you for your comment.

    It is very difficult to give general answers to these questions; however, I believe in these circumstances, one is best served by retaining a reputable licensed contractor to handle the construction permit questions and an attorney to address the specific arrangement with the boarder and/or tenant.

    As a general rule, however, a boarder does not have a separate entrance, kitchen, etc. but shares facilities and there are limits as to the amount of boarders one can have. Also, as a general rule, basement apartments are not legal. Also, as a suggestion, when one is taking in boarders and/or tenants, insurance may need to be reviewed. And, finally, as a general rule, property/school tax values may be increased or decreased and usually, improvements to a residence may result in a higher vale.

  19. We are renting out two rooms to two seperate people. There is no special cooking or apartment like set-up. They are friends and we live in a non-incorporated area in the Town of Hempstead. Am I right in concluding that this is legal? We were left a note by a building inspector saying we might be pm violation of 7-63 BZO.

  20. To Peter:

    Of course I suggest that you take the TOH notice to counsel and consult. In my experience, neighbors sometimes report incidents of potential violations to the BD and I am merely assuming that this report is of a non-permitted use.

  21. We bought a house last year, which was a mother/daughter house and the top floor was as per the permit. Now we bought the house and off course the permit expired and the building Dep sent a mail to the previous owner to renew the permit. Do we have to reply to that letter.
    Also we are renting the top floor now to a couple , this floor was as per the permit of mother daughter. Do we need to get a special permit to have tenants up stairs.

    My father is above 65 and we can get that senior permit, but before the BD issue a check, they will again inspect the whole building ? We don't want to increase the tax of the property also .

  22. Hello:

    I would suggest consulting with counsel. The risks of renting without a valid C/O and/or permit are extremely high.

  23. My father had a mother daughter house he has since past away now the house is in a trust with his oldest daughter his youngest daughter lives in the up stairs is it legal to rent out the down stairs

  24. Hello:

    That would depend upon the town rules. I am assuming your father had a permit for the M/D but I do not know if the house is up to code with a C of O for a two family - so these are items you need to check out.

  25. Can a landlord take you to court for non-payment of rent on an illegal apartment? Also, if the town discovers this apartment while I am here, will he have to return all of the months of rent I have paid him?

    1. Hello:

      The courts are generally in agreement if the municipality has a specific code or rule which prohibits a landlord from collecting rent unless there is a permit, rent cannot be collected and possibly returned. Some courts are conflicted when there is no specific prohibition from collecting rent. And if the apartment is a basement apartment, some courts will not allow the collection of rent.

  26. I rented a basement apartment and moved out in 3 months and had no lease. I have no proof of payment, but they still have my security deposit. What should I do?

  27. Hello:

    You would bring an action in small claims court for a return of the deposit and hopefully you have pictures of the unit after you vacated showing that no damage was done to the premises.

  28. My sister rented her basement apartment to my daughter and after just two months she told her she has to vacate because she's selling the house. She is having trouble finding another apartment in her price range. How long would she have before she has to move after going through court and should she continue to pay rent while waiting for a court date?

  29. Hello:

    Your daughter is in an illegal apartment so the court procedure may go quickly but there are rules to follow and it all depends on how aggressive your sister is in pursuing a legal eviction.