Landlord Created and Rented Illegal Basement Apartment

DOB issued a violation notice to landlord of two-story, two-family dwelling for creating illegal rooms in building basement, along with illegal cooking range, kitchen sink, and full bathroom. The unit also had an inadequate second means of egress, and inadequate natural light and ventilation, which was unsafe for occupancy. Landlord claimed that he intended to correct the conditions but, so far, had been unable to evict the tenant occupying the unit. The ALJ ruled against landlord and fined him $2,400.

Landlord appealed and lost. Landlord claimed for the first time that the violation duplicated a prior violation for work without a permit. ECB ruled against landlord because he raised this defense for the first time on appeal and because there was no duplication. Landlord also failed to prove impossibility to restore the legal occupancy of the basement. Landlord didn’t ask tenant to move out until July 2015 and then waited until February 2016 to serve a termination notice. Because landlord initially authorized the illegal occupancy and later started an eviction proceeding, a defense of impossibility to correct the basement conditions before of the date of the violation didn’t apply.

Wilson: ECB App. No 1601186 (12/15/16) [3-pg. doc.]