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If the occupancy agreement only states an apartment cannot be used for commercial space, is it okay to convert the basement into a commercial office and are zoning variance required?
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Good morning;
If the occupancy agreement states the apartment cannot be used for commercial space, then based only on face value of the information you are providing, the answer would be that an office would not be permitted. According to the NYC Building Department's website, www1.nyc.gov the definition of commercial space includes offices.
However, there may be extenuating circumstances, and if the issue is significant enough for your to explore, then a visit to the Building Department may be your best bet because depending on what area of
New York City your are located in (C1-C8), and taking into account that it appears certain areas do allow commercial space if "located beneath residential space" as stated on that website, then one of two things may be the case;
1) The occupancy agreement could be in contrast to what the Building Code permits and you may be able to apply for a variance based on the fact that in the hierarchy of governing bodies, the local laws prevail over the governing documents of a building.
2) The occupancy agreement could be in accordance with the local laws and there may be certain exceptions in which a variance may be granted;
for example, the office will be used as the building's business office, etc.
Please keep in mind that if you are successful in your endeavor to create an office which provides services to non-residents, certain handicap accommodations which may require design changes to the common areas of the building may be required. Best of luck.
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