Department of Building Clarifies Rules for Joinder of Apartments

By: Andrew Fredman
Date: 1998

Jay Hollander, Esq. is the principal of Hollander and Company LLC, www.hollanderco.com, a New York City law firm concentrating its efforts in the protection and development of property interests relating to real property, intellectual property and commercial interests, as well as related litigation.

The content of this article is intended to provide general information relating to its subject matter. Providing it does not establish any attorney-client relationship and does not constitute legal advice. Personal advice in the context of a mutually agreed attorney-client relationship should be sought about your specific circumstances.

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There was much fanfare several months ago when the press announced that the New York City Department of Buildings ("DOB") had agreed to simplify its requirements for the legal connection of two adjacent apartments in the same building. In fact, the DOB's procedures for such simplification had been in effect for many years--the reason for the fanfare that greeted such announcement was merely recognition of the fact that the DOB had streamlined one component of the process. A simple review follows.

Under the new appellations which have been around since computerization at the DOB, there are three kinds of Alteration filings at the DOB. Alteration Type III applications are the simplest and relate to one kind of work type only--a plumbing fixture, a boiler, minor carpentry--in essence, a minor amount of work. Alteration Type II applications are more complicated and are used when there are several trades involved-- for instance, plumbing and carpentry and masonry on the same project--when there is no change to use, egress or occupancy.

These are the most common form and used to be called Directive 14 Building Notices". Alteration Type I applications are the most complicated because they relate to the use of several trades or when there is a change to use, egress or occupancy. These are used when a project adds square footage, or a commercial building is converted to residential, or when the egress flow out of a building is to be altered. These Type I applications require a New or Amended Certificate of Occupancy ( CO") at the completion of the project, which is a timely and expensive proposition.

In the old days, prior to the announcement about the simplified procedure, it was widely perceived that the only way to combine two adjacent apartments would be to proceed with an Alteration Type I application and change the CO. It was little known that in 1968, the City Charter was amended to allow the combining of adjacent apartments without a CO change, provided that the application received a Reconsideration from the appropriate DOB official allowing such change. The new" procedure announced in several months ago and officially approved and distributed in a Departmental Memo dated November 3, 1997, allowed for the legal combining of two adjacent units without such Reconsideration process or essentially as-of-right. In announcing the rules, the Memo stated:

"An Alteration Type II application may be filed for such combining of apartments with the following restrictions:

1. The combining of apartments shall be permitted either on the same floor or adjacent floors by interior access stairs connecting not more than two stories, and must result in equal or lower number of zoning rooms. New layouts may maintain existing legal non-complying conditions.

2. Natural light and air requirements shall be in compliance for each new habitable room and shall not be diminished for existing non-compliant rooms.

3. Egress from any floor of the building (stairs, corridors, passageways, lobby, fire escape, etc.) shall not be altered under this application.

4. The second kitchen shall be eliminated and plumbing connections shall be capped, unless the approved application plans indicate an alternative use of the connections, such as for washer, dryer, bar sink, new bathroom, etc.

5. If the units are condominiums, a new tentative tax lot number must be obtained from the Department of Finance for the newly created unit prior to filing.

Plan examination by the Department and completion sign-off by a Professional Engineer or Registered Architect shall be limited to the apartments being altered.

Upon sign-off of the completed work, the Borough Office shall issue a letter of completion. The letter of completion issued shall clearly state at the end, The Department of Buildings does not require a new or amended certificate of occupancy for combining these apartments."

It is clear that this procedure results in a decreased number of dwelling units in a building or on floors without an officially changed and documented Certificate of Occupancy, which can only be accomplished under the Alteration Type I procedure. Therefore, prior to proceeding under this simplified format, the Building, Coop or Condominium Owner must determine the ramifications of this type of filing unrelated to Building Department issues. For instance:

-- Will a change to the number of units affect the underlying mortgage? Must a mortgagee by notified? Will it affect a shareholder's Coop or Condo loans?

-- Will a change to the number of units require an Amendment to the offering plan at the Attorney General's office? Will this result in a reallocation of shares or will the now combined units still be classified as individual entities?

-- Will an undocumented unit count change inhibit the sale of the unit(s) years down the road, when a buyer's attorney may not be satisfied with the now legal combination?

These issues can only be reviewed by competent legal and/or tax counsel and are unrelated to architectural or Building Department issues.

For information on this or any other Department of Building issues, be they zoning, Code or construction, please call Andrew D. Fredman Associates Architects at 212-253-1513.

EDITOR'S NOTE: Andrew Fredman is a principal of Faulding and Fredman, otherwise known as F2 inc., an architectural design firm, specializing in the fields of Architecture, Planning and Interior Design. E-mail inquiries may be sent to info@f2inc.com.

This article is contributed in the public interest. It is not intended as legal advice. Nor is any professional relationship intended or established with the reader by virtue of browsing this article. The information contained in the article is believed to be accurate but should not be relied on without independent advice of an appropriate professional.

Copyright © Jay Hollander, 1998. All Rights Reserved.