halobear9900, Home Buyer in Queens, NY

2nd floor bedrooms not legal?

Asked by halobear9900, Queens, NY Tue Jun 5, 2012

We have an accepted offer on a single family cape cod style house and just did the inspection over the weekend. Now it turns out that the 2nd floor bedrooms might not be legal -- we're waiting on title search to see if they can come up with the original plans for the house. Has anyone had any experience with this?

We were thinking of add a half bath up there but now we're worried that it might open up a can of worms if it turns out that the 2nd floor is not legal.

Help the community by answering this question:

+ web reference
Web reference:


Anna M Brocco, Agent, Williston Park, NY
Tue Jun 5, 2012
What is your attorney advising.....if the second floor is illegal, the seller is responsible for all necessary permits and c/o's. Keep in mind that if a mortgage is involved your lender may not lend without the c/o, also check with your homeowner's insurance company regarding insurability....
1 vote
We are still waiting on title search but attorney doesn't think it be an issue. If it turns out that the bedrooms on the 2nd floor were not included in the c/o, meaning that the 2nd floor is listed as "unfinished", how do we remedy the situation? Is it just a matter of permits and getting the c/o updated? What does this normally cost? Is this the seller's responsibility?
Flag Tue Jun 5, 2012
Nick Sakalis, Agent, Syosset, NY
Tue Jun 12, 2012
When you say the 2nd floor bedrooms are illegal, do you mean the entire second floor? If so this will not be an easy issue to resolve. Talk to your attorney about the positives and negatives. Then decide the best route to making a deal happening. I you are determined to purchase the home make absolutely sure that the seller takes care of this issue before purchasing.
0 votes
Yuriy Goldst…, , New York
Sun Jun 10, 2012
You can go to the NYC DOB website and check the CO. And any later filings can be verified through the NYC DOB. So, if the second floor bedrooms are not legal, seller is responsible to legilize them(if he wants to sell the house). But be carefull. If you will by this house anyway you, the new owner will be responsible. Consult your attorney on the details.

Yuriy Goldstein

NYS Licensed Home Inspector
NYS Certified Pesticide Technician
0 votes
Michael Liew, Agent, Bayside, NY
Fri Jun 8, 2012
How do you know if the bedrooms are not legal?
I think you should consult your with your attorney.
0 votes
Nida Kabbaj, Agent, Plainview, NY
Thu Jun 7, 2012
I wrote this from the point of view of the seller because of the
phrase, "...we have an accepted offer..." I was under the impression
that you had accepted an offer! My apologies for the

As the buyer, you must consider several things before going with the
assumption that, "The seller is responsible for the CO, permits....."
The sale of real property is an agreement to buy and sell. To the
extent that the cost to sell is too onerous, the seller may simply walk
away from the deal. While attorney's and agents may then advise the
buyer to sue, block future sales, etc. The fact remains that no one
really wants to go through the trouble and expenditures of a lawsuit,
especially in light of the fact that they are probably going to be
looking for another place to live. That being said my previous
opinion on whom to consult still stands with some minor changes:

1) Engineer/Expeditor - While the seller's CO may not include the
second floor, a subsequent amendment may have been filed. Verify that
the seller's CO is the most up to date one on file at the DOB. You
may even choose to research this on your own, on the NYC Dept. Of
Building's website. Look under the heading Building Information
Systems (Google DOB BIS). To the extent that the second floor is not
filed, consult with the engineer on the matter of cost. Is it just a
matter of a drawing? Or will there be physical remediation required
i.e. replacing the subject windows, etc.?

2) Attorney - Will advise you on your legal rights and recourse.
Knowing this gives you a baseline of how hard you can push this

3) Mortgage Specialist - To the extent that you still wish to buy the
property knowing that there are and/or may be deficiencies, you must
verify that the mortgage company/ Bank will still provide the mortgage and
even if they do, at the same interest rate. Properties that do not
have CO's may be required to obtain construction loans, which are
several percentage points higher and at shorter terms.

4) Realtor - The realtor will be able to present you case to the
seller. This is a stressful and unforeseen circumstance, which may
add time and money to the deal. Having a third party negotiate for
you may reduce the stress and personal feelings from this matter.
Ultimately, it may wind up saving the deal.

Kindly keep me apprised. I am very interested in how it works out.

Thank you and best of luck!

Best Regards,

Nida Kabbaj
0 votes
halobear9900, Home Buyer, Queens, NY
Wed Jun 6, 2012
Nida, I am the buyer, not the seller. My question is from the buyer's point.

The engineer mentioned to us during the inspection that it the bedrooms on the 2nd floor/attic looked like they were added after the house was built and noted in his report to ask for c/o from the seller to verify.

What happens if it turns out that the c/o does not include the 2nd floor, meaning the changes were made without permits, etc.?? Are the sellers required to get the c/o updated? Can we get the c/o updated if we decide to go ahead and buy the house anyway? What are the repercussions if we buy the house but don't get the c/o updated?
0 votes
Nida Kabbaj, Agent, Plainview, NY
Wed Jun 6, 2012
While I have personally had experience with a similar issue wherein a sale of a property was held up by the fact that an attached garage was not properly filed for when the house was built in 1969, each and every case is different. The first issue that the writer must clarify is, "How did this question come up?" It is unusual for a housing inspector to pick this up during a home inspection. Home inspectors usually only check for structural and construction related issues. The question of "how" becomes important as we want to verify the validity of the claim. To the extent that the home inspector is only saying this based on a "hunch" or "gut feeling" then my opinion is that it really wouldn't behoove the seller to open the proverbial can of worms. However, in the event that the home inspector's finding is based upon the most up to date approved set of Department of Building's Drawings, then the seller should contact his/her attorney and retain the services of a licensed professional engineer. To the extent that professional realtor(s) are involved in the transaction, the seller should notify his/her realtor as well. While the ultimate decision as to the final course of action is up to the seller the sequence of responsibility is as follows:

Attorney - Advises the seller on his/her legal obligation under the contracts that may and/may not be in place. To the extent that the seller decides to move forward with the sale, the attorney can advise upon the costs that he/she is responsible for.

Licensed Engineer - Can advise the seller on the course of action, time, and expenses that may be incurred to correct this issue. This may not be a complicated and/or expensive issue to remedy. It may very well only cost the seller $2,500 to have the engineer provide a set of drawings reflecting the asbuilt conditions and requisite safety calculations.

Realtor - Can assist in negotiating the costs/delays and other issues that may arise. Buying and selling a home is often times a stressful and emotional life event. Particularly when delays and additional costs arise. Having a third party relay your position and/or hardships may serve to obviate confrontation and ultimately save the deal.

Thank you and good luck.

Best Regards,

Nida Kabbaj
Exit Realty By The Park
Direct: (917)681-1102
0 votes
Dennis Barnes, Other Pro, Arundel, ME
Wed Jun 6, 2012
I believe the "might not be legal"phrase has to deal with the emergency escape opening requirement in the building code. Code is very specific concerning the minimm clearances of the openings (windows) and how they can be accessed, as well as how they can be exited from the exterior. Some codes excuse the egress requirements from houses with automatic sprinkler system - it's doubtful you have one.

Check the current IRC but here's the requirement: escape opening shall have a clear opening area of at least 5.7 square feet; at least 24 inches high; at least 20 inches wide; sill of opening not more than 44 inches above the finished floor. Opening height and width are clear opening measurement.

Hope this helps - good luck!
0 votes
Search Advice
Ask our community a question

Email me when…

Learn more