The New York Times
Real Estate Q&A (top article only)
229 W. 43rd St.
New York, NY 10036
April 27, 1997
Q.: Is there any lawful way to eject a holdover tenant from an illegal apartment in a two-family house?
Cazal Putnam, ManhattanA.: "The letter writer's question relates to the popular legend that if someone is foolish enough to rent you an illegal apartment in a two-family house, you can live rent-free for life," said Thomas P. Higgins, a Manhattan real estate lawyer. "Like the proverbial alligators in the sewers, this canard is based on a germ of truth liberally embellished over time."
"When an owner creates an illegal apartment in what was a single-family house," Mr. Higgins explained, "the owner subjects the building to the regulations governing multiple dwellings. For example, multiple dwellings must have a certificate of occupancy and a multiple-dwelling registration on file with city and state agencies. The penalty for not having such documents on file is quite harsh."
"Essentially, the landlord can collect no rent whatsoever from the tenant and cannot evict the tenant for nonpayment," Mr. Higgins said, adding that "once the proper documents are obtained and filed, the tenant must resume paying rent."
"There are situations, however, where it may be impossible for an owner to obtain a certificate of occupancy. It is unlikely, for example, that a basement apartment with no windows or ventilation would ever meet the requirements of the housing code. In such a case," Mr. Higgins said, "an owner would seem to be in a Catch-22 situation: the owner cannot charge rent or evict a tenant, until a certificate of occupancy is obtained, yet the owner will never be able to obtain the document."
"Perhaps this is what led to the urban myth of living rent-free," Mr. Higgins said. But he added that "a 1972 case in New York dealt with just such a situation - a landlord attempting to evict three musicians who were living in an illegal basement apartment - and eventually eliminated the Catch-22."
"The trial judge in the case ruled in favor of the landlord and three appeals followed. The first was decided in favor of the landlord, but the second was in favor of the musicians. When the case reached the state's highest court, the Court of Appeals, the court unanimously ruled in favor of the landlord and permitted the eviction.
"The court decision remains the law in New York today," Mr. Higgins said.