How to Legalize a Basement Apartment in New Jersey

In New Jersey, a landlord who converts a basement, attic, garage or other space to an apartment is required to get the proper approval from the city or county. Whether a landlord offers a bedroom or kitchen in a basement, the rented space must be habitable.

The unit must also be built in accordance with city, county and state rules. If law enforcement officers discover the occupancy of an illegal apartment, the landlord must pay to relocate the tenant. A rental unit must be fit for residential purposes throughout the entire term of the lease.

A landlord is required to keep a rental property in good condition. The unit must have:

• Sufficient heat.
• Working water and electricity.
  
• Weatherproofing to ensure the dwelling and rented spaces within it do not leak.

Further, the unit must be free from mold, lead and asbestos.

Whether a landlord creates space for a bedroom or a kitchen in a basement in New Jersey, the rented area must comply with local municipality standard building code requirements for residential units.

If a landlord modifies a basement or other type of space, the city or county’s zoning department will likely require them to get a zoning permit. A city or county ordinance can set rules specific to certain types of spaces within real estate.

For example, Newark’s city code sets particular rules for basement apartments. Newark provides that a basement may be used for sleeping, cooking or eating purposes if:

• All applicable provisions of the ordinances of the city and state hotels and multiple dwellings laws are met.
• There is an available exit to the exterior of the building from the dwelling unit or rooming unit through two accessible doors. One may provide direct egress into a common area, hall or corridor which has an accessible door allowing direct exit.
• There is a fireproof partition or wall completely separating any boiler or furnace unit from the dwelling or rooming unit.

Gas-burning appliances may not be installed, used or operated in any room used for sleeping purposes. The exception to this rule is for gas appliances that employ a sealed combustion system in which the inlet and outlet communicate with outside air and have a single one-plate gas burner permanently connected by rigid pipe to the source of gas supply.

Jersey City holds that cellar space may not be used as a habitable room or dwelling unit. Further, cellar space may not be used as bathroom facilities of a dwelling unit, boarding house or lodging house. Basement space may not be used as a habitable room or dwelling unit unless:

• Floors and walls are impervious to underground and surface runoff water leaking into the unit.
• Floors and walls are insulated against dampness.
• Total of openable window area in each room is equal to at least the minimum required by the city and must be located entirely above the grade of the ground adjoining the window area.
• There are no ducts, pipes or other obstructions less than 6 feet 6 inches above floor level.
• All furnace or other heating facilities are located, insulated and separated from living areas by fireproof partitions or walls.
• There is a second means of egress. This may be a second door located independently from the first and leading directly to the outside of the premises. Alternatively, the means may be an operable egress window located no more 3 feet above floor level.

Homeowners who are concerned about certain issues such as ceiling height should check state law regarding requirements. A homeowner can finish a basement for habitable purposes even if the ceiling is below 7 feet.

If the structure is new construction, a minimum ceiling height of 7 feet is required for habitable space, hallways and portions of basements containing these spaces. New basements containing habitable space may have beams, girders, ducts or other obstructions to project to within 6 feet 4 inches of the finished floor.

A tenant in an apartment or living space that is uninhabitable or does not conform to the requirements of state laws and city or county ordinances has several options:

• Withhold rent until the landlord makes necessary repairs.
• Seek rent abatement (reduction in rent).
• Make repairs and deduct the cost from next month’s rent after giving the landlord a reasonable amount of time to fix the problem. The repair must be substantial enough so as to materially affect the tenant’s health and well-being.
• Break the lease and sue the landlord in small claims court. If the tenant wins, the landlord must pay for repairs and damages relating to the unit’s habitability.
• Report the landlord to the local building or health inspector.

The penalty for renting out an uninhabitable unit or space in a family home or other structure varies depending on the landlord’s violation. For example, if the heating equipment in a residential unit does not work, and the landlord does not address the issue after the tenant gives them notice, the local board of health can act as an agent for the landlord. The board may order the repairs to fix the heating equipment.

A tenant of an uninhabitable unit who chooses to break their lease experiences “constructive eviction.” Such a tenant may sue the landlord in civil court for damages, including:

• Cost of moving out.
• Cost of moving into a new unit.
• Cost of repairs the tenant made or attempted to make to the unit so that it would comply with state and local regulations.
• Difference in rent between the property that the tenant vacated and the new property to which the tenant moved.
  
• Damages for emotional distress experienced by the tenant.

New Jersey prohibits a landlord from retaliating against a tenant by evicting them for reporting or requesting repairs or filing a civil action against them.