Basements and cellars differ in their amount of height above curb level. A basement has at least one-half of its height above curb level, while a cellar has less than one-half of its height above curb level. Usually, if a cellar has any windows, the windows are too small for an adult to fit through. Basements and cellars in residential properties of all sizes can NEVER be lawfully rented or occupied unless the conditions meet the minimum requirements for light, air, sanitation and egress, and have received approval by the Department of Buildings (DOB). You can check the Certificate of Occupancy on the DOB website to see if the basement you wish to rent is legal. DOB also posts Tips for Renters to help identify when an apartment is illegal.

Basements

A basement is a story of a building partly below curb level but with at least one-half of its height above the curb level.

Basements in one- and two-family homes can be lawfully occupied only if the following conditions are met:

• The room complies with the requirements of the Housing Maintenance Code for rooms not located in the cellar or basement, e.g., minimum room size.
• There is a minimum ceiling height of 7 ft.
• The walls, as high as ground level, must be damp- and water-proofed if HPD determines that subsoil conditions on the lot require it.
• The basement is occupied by only members of the family or families occupying the dwelling.

Basements in a one-family home can be lawfully rented only if the following conditions are met:

• Compliance with the Housing Maintenance Code for minimum room size.
• There is a minimum ceiling height of 7 ft.
• The walls, as high as ground level, must be damp- and water-proofed if HPD determines that subsoil conditions on the lot require it.
• The basement is occupied by one family and does not include boarders.
• Every room must have at least one window.
• The bottom of any yard or other required open space cannot be higher than six inches below the window sill of any required window in the room.

Basements in a two-family home cannot be lawfully rented:

• If the rental of a basement in a two-family dwelling would result in changing the status of the building to a multiple dwelling (three-family or more) and would require a new Certificate of Occupancy issued by the Department of Buildings. Please call 311 for more information on compliance.

Cellars

Cellars in one- and two-family homes can never be lawfully rented. Cellars in one- and two-family homes cannot be lawfully used for sleeping, eating, or primary.

Both HPD and DOB may inspect for illegal occupancy of basements or cellars. Each agency may issue violations for illegal occupancy conditions or issue Vacate Orders that the occupant leave the illegal space. If a Vacate Order is issued by either agency, the occupant is advised that they can receive relocation services through HPD. Property owners will be liened any costs incurred by the agency and provide relocation services (which may include temporary housing) to any occupants who receive these services. These costs can be significant.

If the Vacate Order is issued by HPD, the agency will notify the owner and occupants and provide an enforcement date. HPD will re-inspect the premises on the enforcement date to verify the illegal basement or cellar apartment is vacant and properly sealed.

HPD launched a pilot program, the Basement Apartment Conversion Pilot Program (BACPP), in partnership with Cypress Hills Local Development Corporation. BACPP provides eligible low- to middle-income homeowners living in one- to three-family homes in East New York and Cypress Hills, Brooklyn (Community District 5) with low or no-interest, or possible forgivable, loans to convert their basement or cellar into a safe, legal, and rentable apartment, based on altered building code legislation pass in February 2019, Intro. 1004. The homeowner is also provided with technical assistance needed to close on a loan and complete the construction project.