Illegal Spaces

It seems like every New Yorker has a story about a friend who turned an office or an especially large closet into an additional bedroom. With real estate prices skyrocketing over the past several years, it makes sense that a family might consider buying a unit with one less bedroom than they need and then … adjusting it.

“Everybody does it,” says a broker who requested anonymity. “When they go to sell it, they can’t advertise it other than [for] what it legally is. But as far as usage goes, people can pretty much do – in their houses – whatever they want. If they’re not doing anything permanent and messy, then nobody’s going to know.”

Going along to get along can seem the best solution to what many boards (and shareholders) consider a non-issue. The problem comes, however, when the illegal room is discovered – the neighbor downstairs has a complaint, say, or a catastrophic emergency occurs – and the board could be on the hook for the illegal condition. So what should boards do if they find residents playing fast and loose with residence requirements?
“It’s an illegal condition,” says attorney Abbey Goldstein, a partner at Goldstein & Greenlaw. “It certainly could result in a violation being imposed on the co-op. Being aware of an illegal condition does require the board to take action.”

What shape does that take? For boards, it’s all about having the backing of the courts. “You could send off a notice to cure – that they’re in violation of the proprietary release,” notes Goldstein. “In other words, they would be in default of that if they’re in violation of some applicable law or ordinance.” The notice to cure would generally give the resident 30 days to correct the situation. “If they don’t,” says Greenstein, “you could terminate the lease, and bring an eviction proceeding against them.”

If the situation needs to be resolved more quickly, though, the board might consider an injunction, a court order that compels a person to take an action or refrain from taking one. In this case, says Goldstein, you’d be asking for an injunction ordering the individual to legalize the space by removing any partitions that have been erected to create an illegal room, or by returning an interior space to its original state. “The advantage to the injunction is it happens much quicker,” Goldstein continues. “Usually, if there’s no immediate threat, no landlord is going to bring an action in State Supreme Court seeking an injunction. They would more likely do the notice-to-cure approach, which is giving the person the opportunity to cure it.”