Legalize it? (informal second units)

8 Replies

I'm looking to move into a duplex or triplex. In my price range, I keep seeing "single-family homes" with basements or garages that just so happen to have kitchens, bathrooms, and separate entrances.

My first inclination is to see opportunity. If I could get those legalized as second units, that would add value. On the other hand, how do I get a decent level of confidence that I'll be able to legalize it? I don't yet know all the requirements (parking, ceiling height, egress...), and adding a window is one thing, but digging the floor down twelve inches is another. I wouldn't want to buy on the assumption that I could legalize the unit and then find out I couldn't.

But how do I assess this? I doubt the seller would want to give me an option while I kicked over a hornets nest up at Building & Planning. Could I ask the permit counter for general advice without getting into the property specifics? Should I address this during the inspection contingency and pull in an architect or engineer to get their opinion? Should I just assume that if the unit could be legalized, that would have already happened? (I'm not sure I think that -- having met one owner of a place like this, I can say that playing by the rules doesn't seem to be his focus, so I'm not sure he tried.)

Thanks for any advice you have!

Yes, you can get engineers and architects. But, where I am, I'm better of calfling expeditors, many of whom are engineers or architects, who deal with issues of zoning.

Unfortunately, most people on this site are real estate investors, look at it from a real estate standpoint, rather than from a city planner standpoint. My wife was a city planner for a while, and I see the issue from a whole different perspective.

I've invested mostly in duplexes and triplexes, and for a while, ignored the zoning issues. Many rental properties I looked at is as you described, a SFH with a converted attic, a duplex with a basement converted to an apartment. I owned triplexes that's legally a duplex for years. Surprisingly, I owned a legal triplex built in 1939, and legally converted in 1942 to a triplex. How did they do it? During wartime WWII, exception were made due to the scarcity of materials.

I only got involved with zoning issues when one duplex I owned with an illegally cited basement apartment was cited, and I had to get an expeditor because the city order it demolished. At that point I had to get a variance. No luck. There's a neighborhood association that opposed every single variance application because such variances require a public hearing, and it's all shouted down. A Mercedes dealer two blocks from me try to built a parking lot on an empty lot he owns, had a number of variance hearings over 30 years, turned down on each one. How do I know this? Invitations to public hearings for zoning variance must be given to neighbors within 200 feet of the property. I was invited for coffee and donuts to a meeting at his dealer prior to the zoning meeting. The local association had it's people attending telling us why they opposed it. That's 15 years ago, and the lot is still empty.

Would an architect or engineer help the Mercedes dealer? I don't think so.

The best way is to have a meeting an City Planning with a planner. As I mentioned, my wife was a city planner, and the way they look at things, they take into consideration the City Master Plan, local politics. Where does the planner fit in? They look at the school population, electric and gas requirements, traffic, water and sewer, and see how many people the area can accommodate. In urban areas and vicinity, you can't add housing units without looking at these issues. In fact, the local gas utility has stopped providing gas to new construction, and renovations where gas was cut off and had to be turned on again because they claim there's not enough gas capacity.

The expeditor I used was aware of all of these issues, so after much discussion, the unit was turned into an office, which is what I used it as. He had the order to demolish rescinded which saved me $30K. Originally, they want the entire illegal unit gone.

As to the local home association President who opposed all the zoning changes, after 20 years in the area, I have to admit he did lots of good. He got a new school built, funding for local play grounds, in addition to opposing the Mercedes dealer. Recently, there's a GoFundMe page for him as he has Alzheimer's and I sent in my contribution.

Thanks, Frank! I think I'm going to go to the planning counter next week and just discuss hypothetically what it would take to convert the basement and/or garage into an accessory unit (not mentioning that it's functioning as one currently). I'll keep you all posted!

Well, good news -- sounds like the zoning and parking and setback requirements (everything that the Planning Counter could tell me) are all a-okay. The only question marks are the height and egress -- the Building Counter just assumes that you'll be working with someone who knows the Building Code so they weren't able to give me all the answers in the same way. Seems like my next step is to walk the properties with a design-build contractor type. Thanks again for the advice!

You need to double check the zoning portion. Are you currently zoned for 2 units? If not, don't be so quick to assume you are "a-okay"- you'll need to be rezoned or get a variance. You'll basically need the board and your neighbors to approve or you'll be out of luck. If you wait to do this until after the contractor is done you are gambling on a non-conforming structure.

Thanks, David! I'm zoned for up to 4 units on one property I'm evaluating, so that one is straightforward to convert to a triplex. (I don't think I have the parking space to go higher than 3. Maybe...?) The other is zoned for up to a duplex, but in January, a new city ordinance allows for auxillary units, basically giving every property a "plus one," as long as that unit is under 1200 square feet. Planning still has to approve the plans, but I don't have to request a variance or go through hearings or anything. 

Thanks for the tip! Now if you have any tips on how to deal with holding the property for 6-8 weeks while the planning and building review is underway, that's my next problem. Does anyone submit plans while the property is still in escrow or is that a terrible idea?


@Carrie K.

If you're new at this, I wouldn't be in such a big rush. Besides zoning, you have building codes. I told the story above about getting a variance for a duplex to a triplex but can't. As it turned out, I can't do that even if they gave me the variance because I would have to bring the duplex up to the standards of a triplex. The building codes here require triplexes to have fire escapes, concrete enclosed furnace rooms back then. It appears newer triplexes require sprinklers and Siamese water connectors out front, building wide fire alarms etc. 

I also bought a property where the owner converted a garage to a rec room. Expeditors who checked on it told me I wouldn't have problems with zoning, but with building codes. Zoning wise, the house across the street done it. Code wise, I need larger roof beams, footings for the breezeway leading to the garage since it's now inside an enclosed living area, window in rec room not large enough for egress. I have to correct all these issues before I apply for the variance. Also in NYC, if work was already done, you didn't bother with a permit previously, there are fines involved going forward.

But these are the issues in my area, and could be different where you are which you need to check out. For me, retrofitting a duplex to a triplex is inefficient cost wise. An investor in my area instead of having an added illegal basement unit, combined it with his 2BR/1Ba unit to have a huge apartment, on 2 different floors.  I believe they had a daycare business there. I also find the need for these larger unit for people working from home, running a business from home, and I rented them out for that. A friend who's a home based therapist seeing clients at her home would love to have her living quarters on a different floor.

Agree with all the above nuances & difficulties. In fact on a multi we own we also had to design & install a complete fire sprinkler system throughout the building built in 1960.

Just recently we had a fellow investor buy a listed 'duplex'. Although it was duplexed many years ago it was zoned single family. Building Inspector etc all decided '..no problem we'll just change the zoning...' You have to love some rural towns.

A belated reply to thank everyone for the list of things to look out for. I did confirm that we don't need to do sprinklers unless it's a triplex. We'll be working with a design-build team that understands the local building codes well, and I'll pass along the concerns. I definitely don't want to purchase this property if we can't convert the basement (which is being used as a second unit now) to a legal second unit, so I'm going to be doing a lot of due diligence. Thanks for the suggestions about what to look into.