Can a Tenant Be Evicted If Someone is Living in an Illegal Basement?


When it comes to landlord-tenant issues, very few places in the United States, or possibly even the world, are as complicated as housing in New York City. There are lots of rules, regulations and procedures that need to be followed, especially by landlords, to make sure that a unit that they are renting is in full compliance to rent. One big thing you’ll find here in NYC, especially in Queens and Brooklyn, are people living in “illegal basements.” The question is, however, can a tenant be evicted if someone is living in an illegal basement?

What makes a basement illegal?

Since NYC has so many different kinds of buildings and tenancies, we’re going to use a two family house as an example in this article. Two family residential houses abound in Queens and Brooklyn. Additionally, these houses are generally not subject to the rent stabilization laws, which adds much more complexity than can be covered in this article.

So, let’s assume that a landlord owns a two family house out in Queens. As is often the case, a tenant is renting the second floor apartment, while the landlord lives in the first floor apartment. Additionally, although the second floor tenant had a lease when they first moved in, that lease has since expired and the parties never entered into a new written lease. As a result, the second floor tenant has been living in the apartment as a month to month tenant. Let’s also not forget an important fact in our example: there is someone living in an illegal basement.

The Landlord Wants to Evict Me. What are my options?

Now comes the interesting part. For whatever reason, the tenant was served with a thirty day notice to vacate the premises. The tenant doesn’t move, so is then served with court papers – a Notice of Petition and Petition for Holdover.

What is a holdover case?

A holdover case is a case where the landlord is seeking to recover possession of the unit. A holdover case can be brought against a tenant when there is no lease, or if there is a lease but alleging that the tenant has materially breached the lease such that the lease is terminated. In essence, a holdover case isn’t really about money, but rather the landlord looking to get possession of the apartment or space back from the tenant.

What makes a basement illegal?

Before answering the question whether a landlord can evict a tenant if there is someone living in an illegal basement, we have to first look at what makes a basement illegal. The answer is usually pretty simple. One of the easiest ways to determine if a basement (or any space, for that matter) is illegal is to look at the Certificate of Occupancy (“C of O”) for that building. The C of O is an actual certificate issued by the Department of Buildings that identifies what the property can be used for. That is, the C of O will state what purpose each floor may be used for.

In our example, we were using a two family residential house in Queens. Many two family houses in Queens have a C of O that states the first and second floors may be used for one family dwelling purposes, and the basement or cellar may be used for storage or accessory use. In this case, since the basement is not designed for dwelling purposes, it may not be rented. Thus, renting a basement designated for storage or accessory use creates an illegal occupancy in the building. In NYC, you can search for a property’s Certificate of Occupancy by searching the Department of Building’s Building Information Search System.

Can a landlord evict a tenant when there is someone living in an illegal basement?

To recap our example, we have a two family house where the tenant lives month to month with no lease on the second floor; the landlord lives on the first floor; and there is someone living in the basement which is not designated for dwelling purposes. The landlord has brought a holdover case to evict the second floor tenant.

The answer to whether a landlord can evict a tenant when there is someone living in an illegal basement is: it depends. The rule is as follows: a landlord may bring a holdover action to evict a tenant, even if there is someone living in an illegal basement. The exception to this is very narrow: “the owner of an unregistered multiple dwelling may maintain a holdover proceeding and may recover possession in such a proceeding where the ground for recovery is not rent-based, although no ancillary money judgment may be sought or awarded.Czerwinski v. Hayes, 8 Misc3d 89, 799 NYS2d 349, 2005 NY Slip Op 25121 (N.Y. App. Term, 2005) (emphasis added). 

What this means is that a landlord can bring a holdover case to evict a tenant, even if there is someone living in an illegal basement, but may not in that holdover case seek an award of money damages, such as for “unpaid rent” or “use and occupancy.” If a landlord is seeking to evict a tenant in a property where there is someone living in an illegal basement, the best option would be to NOT include any language that requests a money judgment. If a tenant is defending against a case like this, the best option would be to review the court papers for language seeking a money judgment and, if such language is in the court papers, file a motion to dismiss the case.


Illegal occupancies abound here in NYC, especially in Queens and Brooklyn. That being said, if you are a landlord and want to evict a tenant but not sure because you have someone living in an illegal basement, the answer is that you can. To avoid any potential defects, however, and to try and minimize a motion to dismiss that may be filed, it would be a best practice NOT to include any request for a money judgment.

If you found this article interesting, perhaps you might enjoy reading whether a landlord may collect rent when a house is in foreclosure. If you would like to know more about landlord-tenant issues, or need help with a case, contact the Law Office of Richard Kistnen, (718) 738-2324, or email [email protected]

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