In New York, there is a legal difference between a basement and a basement

Editor’s note: This story is an update of one that ran in 2016. Read the original here.

Without many knowing, the difference between a basement and a basement, often misunderstood as an engaging everyday difference, is in fact a nuanced legal matter.

At least half of the story must be above ground to qualify as a “basement” in New York City. Otherwise, it is considered a basement and is not legally habitable – no matter how nice it looks. (Covering the rubble and removing the shackles will not cut it, sorry.)

row of houses in eastern new york

East New York

To put it lawfully, a basement is “a building history that has at least half of its floor-to-ceiling height above the curb level or ground floor,” in the words of NYC Planning. And this space is included in floor area calculations – also known as the building’s square meters.

The basement is legally defined as “a level of a building that has at least half of its floor-to-ceiling height below the curb level or ground floor,” says NYC Planning. It is not included in floor area calculations.

This becomes important when deciding whether the ground floor of a Brooklyn home is legal to rent. But just being a basement is not enough. Its light, air, sanitation and exit must also comply with the required conditions noted by the city’s Department of Housing Preservation and Development.

the outside of a townhouse in the gardens of the prospectus

Prospekt Lefferts Have

In classic high heat, floor-level floors are almost always legal living space. Since there are typically only a few steps down to that floor, 50 percent of the floor-to-ceiling height is usually above grade, thus meeting the requirements to be a basement. There is probably also a basement below with building mechanics.

In a low-lying house (such as a limestone and typical two-families around 1900) the legality may be more ambiguous. The floor under the living room may be the lowest level of the house and may contain building mechanics. To be lawful living space, the floor-to-ceiling height must be more than 50 percent above the tub, and other conditions must also be met.

A solid sign that a room does not meet the requirements is a lack of windows or very small windows, according to NYC Buildings’ list of tips for renters.

[Photos by Susan De Vries]

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