How Do I Certify My Basement as Habitable?

Question

I've just closed on a two flat with an illegal basement that's already fully-furnished.  The previous owner used it as an occasional crash pad.  I don't need to monetize the basement to make this deal work, but based on the location, it would be great for AirBNB, so I want to find a way.  So far, everyone's basically just told me A: It's not legal, and I can't advise you on how to make it legal, and B: Oh man, you're going to make so much money AirBNBing that thing.  My real estate lawyer on closing couldn't even answer if I could legally put a pool table down there for my own purposes.  The basement is 900 sqft, and the building is very much only zoned for two units.  So I can't make it a third unit.  I just want to treat is as part of my second-floor unit (where I live--there are tenants on the first floor) and AirBNB it.

I've been told it was only ever illegal because it only has one exit and is over 800 sqft, but my read on the new building code is that that's fine, as the maximum egress distance is under 75 feet.  But my armchair opinion on the new code counts for squat, and either way, I'm sure there's some sort of certification process.

How does this work? How would I go about getting someone to "sign off" on this basement being habitable, even if just for my own purposes? Let's say I wanted to include it in the first floor's lease--who would sign off on that?

A couple of details here that might be relevant.  1: It's likely prohibitive to install an egress window, as the existing windows are way over 44" off the ground, meaning we'd have to dig a hole, tear up the wall, and extend the windows down.  2: The basement has one exit, to the rear enclosed stairwell.  From the exit, you take five steps up, and you're outside.  3: The basement does include a full kitchen and 3/4 bath, although the seller disconnected the stove and put it in a closet for closing, for reasons that I didn't fully grasp.  I took this as akin to tearing up toilets before the tax inspector comes by.

Henry Lazerow · Answer

Ignore the outside chicago responses. If the basement has always been illegal it will still be illegal regardless of ceiling height, etc. If you bring the city out to ask it will just result in you getting a violation for the basement and likely a bunch of other minor violations around the building.

If you want to legalize it under the ADU bill talk to a zoning attorney and determine if it's possible and at what cost. It can get pricey to do it right but depending on the neighborhood will be a huge bump in value for the building.

Brie Schmidt · Answer

as @Henry Lazerow said I would NOT call the city and notify them of the unit not being legal

Crystal Smith · Answer

You could do the research yourself but depending on the value of your time, I'd look for an architect familiar with the local regulations/codes,.... and pay him for his time to provide an evaluation of habitability of the basement.  You could spend hours researching it on your own or hire an expert.

Chris Nowak · Answer

Definitely get the architect down to your property - someone who has experience in the city. He will get all the guess work out of the way. Calling building dept inspectors is the last thing you wanna do.

Samuel Pavlovcik · Answer

@Brie Schmidt definitely provided some relevant code excerpts; however, @Henry Lazerow definitely brings up a good point. You need to use a certain level of finesse when dealing with the City.

If the unit was constructed illegally; without a permit, they can require you to strip everything down to the studs, and either go thru the building permit process to get it done legally, or make you provide a different use for the space (i.e. storage). Additionally, they definitely could write up various other violations and fine you to get them corrected. That being said, I appreciate your desire to "do things the right way" and actually make it a legal, habitable space.

There are many illegal/nonconforming units throughout the city, so many, in fact, that a majority of the time these units go unnoticed, and continue to be used and even rented out for years at a time without ever having any issues; however, the concern and risk is always there. While it can seem stressful and a little scary think about how long the previous owner was using it the way it was being used; plus he was still able to sell the property as is without anyone coming down on him for the illegal unit... Priority 1 is just making sure it is safe.

Brie Schmidt · Answer

13-196-740  One additional dwelling unit over original allowed – Conditions.   A pre-ordinance (built before July 8, 1957) residential building or building of mixed residential occupancy, not complying with the requirements in force and applicable to the building at the time of its conversion, may be altered so as to legalize one dwelling unit, in addition to the number of dwelling units originally authorized, providing that said unit was determined by the office of the zoning administrator or the zoning board of appeals to have existed prior to July 8, 1957, and provided such building complies with the other provisions of this chapter. Such conversion need not comply with the requirements of the following specific provisions of this chapter:

(a)   Section 13-196-660 (height limits); however, in frame buildings, four or more levels of living space shall be prohibited and in buildings of ordinary construction, with or without attic living space, five or more levels shall be prohibited;

(b)   Section 13-196-050; however, all dwelling units must comply with the exit provisions of Chapter 13-160 except basement dwelling units may have a second exit through a room containing a heating plant;

(c)   Section 13-196-670 (stairwell enclosures);

(d)   Section 13-196-680 (corridor enclosures);

(e)   Section 13-196-690 (dwelling separations);

(f)   Section 13-196-710 (basement ceiling construction); however, if the basement contains a dwelling unit the entire basement ceiling construction is to be wood lath and plaster of half hour construction;

(h)   Section 13-196-720 (heating plants); however, basement apartments are to be separated from heating plants with partitions of one hour construction.

(Prior code § 78-72; Amend Coun. J. 6-14-95, p. 2841)

Jared W Smith · Answer

You need an architect experienced in your location, dealing with legalization and dealing with City/DOB.

Also, the laymen review of Codes is not the same as a zoning attorney or an architect. I wouldn’t spin your wheels too much looking at information if you don’t fully grasp the language and intent.

Jared W. Smith, RA

Principal Architect - Architect Owl

Chris Novak · Answer

"Maybe arrange for a meeting with the local building department people and fire off all these questions."This is pretty much my question in a nutshell.  My research has turned up a bunch of code sections but no department that seems to review these sorts of things.  As far as I can tell, this is something that comes up when a contractor builds a home or an addition, not when a homeowner wants to install an egress window to, hopefully, bring things up to code.  Nobody can point me in the right direction.

Brandon Bielas · Answer

Maybe arrange for a meeting with the local building department people and fire off all these questions. There may be a fee, but at least you will hear what is required and not required for your situation. I had the option of this before I started my ADU. I opted not to do this kind of "overview meeting", but doing it might have made what I needed to do more clear from the beginning. I personally had to wire the entire house with interconnected fire alarms and do some things related to insulation, window heights, handrail heights, have access to the ADU from my part of the building, etc. to bring it up to their standards. It was honestly way more work dealing with the paperwork than it was for the actual construction. They may determine that it's not even required to file for an ADU if you don't have a full kitchen. Go for it, do it all legit and work with the city. (It appears as though Chicago has recently opened their arms to ADUs.) Good luck!!

Chris Novak · Answer

Thank you!  My read on most of this is that it already fits code-wise.  It's got the ceiling height, it's got ventilation, and it's remarkably well-lit for a basement.  The stove is an interesting concern, but I'm perfectly willing to just write that off--whether it's an AirBNB or a duplexed basement, the stove isn't mission-critical.  We do plan to install opening windows just for ethical purposes, but I don't think it's required at all under the new building code.  I wasn't familiar with closet requirements, and I've lived in apartments without dedicated closets, but the one enclosed bedroom in this basement does have one.

I just don't know how I go about using this basement legally.  I'm fairly certain Chicago won't just let me start using it without having somebody come and check it, and my lawyer more or less backed that up.

How Do I Certify My Basement as Habitable?

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