NYC seeks law protecting basement apartment dwellers, owners

During Hurricane Ida in 2021, 11 drowned in mostly-unregulated apartments

August 30, 2022 Brooklyn Eagle Staff

Hurricane Ida last September devastated much of New York City, including parts of Brooklyn, and flooded many basement apartments. AP Photo/Craig Ruttle, File

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Approaching the one-year anniversary of Hurricane Ida, New York City Comptroller Brad Lander, a former Brooklyn councilmember, 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 during Hurricane Ida on Sept. 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 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,” said Lander.

New York City Comptroller Brad Lander. Photo courtesy of NYC Comptroller’s Office

A cellar is a story in which 50 percent or more of the height from finished floor to ceiling is below the street grade and a basement is a story in which 50 percent 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 percent 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.

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.

Like loft tenants of the 1980s, basement unit dwellers today do not currently have any legal protections or rights to basic safety provisions, according to Lander. In those cases where the city does inspect because the units are illegal, the city has few options other than to issue a vacate order.

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.

“In the midst of a housing crisis made worse by the COVID-19 pandemic, it is imperative for the city to protect working families who live in safe and affordable lower-level units,” said U.S. Rep. Nydia Velázquez (D-Downtown Brooklyn-DUMBO-Clinton Hill-Bushwick).

“I strongly support expanding legal protections to these units and allowing homeowners to make income from rent payments. We need more affordable and safe housing in New York City, and equipping the families who call these units home with resources is an important step in the right direction,” she added.

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-Councilmember 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, said Lander.