“What do you mean my basement is not legal?” is a common refrain when the homeowner is contacted by a bank, building department or title search agent.  The home-owner is seldom taken to a jail cell in cuffs, but it’s a situation that is difficult , and it usually comes at a sensitive time, like when you are selling a property….Call me @ 914 674 2950, let’s discuss your situation.

Many home and building improvements require building permits. Building permits are granted by the municipality in which the home or building is located and indicates that the project has been reviewed and approved for conformance with the building code and zoning regulations before construction begins. It is against the law to make most non-cosmetic improvements without these approvals or permits. The process of bringing the work done without permits into conformance with current regulations is called “legalization”. For a legalization, the approval process is done after the work is already in place.

Usually, the municipality has a building department which issues a building permit application which asks questions about the proposed improvement-where, what is proposed, who is building it, cost, technical requirements, etc.


The application is generally returned to the building department with a fee and drawings that describe the improvement. If the application package is acceptable , the permit is issued and the work may commence.  If the project is not “conforming” remedial work must be performed to bring the premises “up to code”.  For example, this might mean putting in smoke detectors in ones house even if you are simply legalizing a deck.

Obtaining permits is a simple task, but frequently is ignored, overlooked or avoided. The reasons Owners avoid the permit approval process are:
 It takes time: usually one-6 months.
 It costs money: application fees, possible tax increases, fines, potential remedial construction costs, engineer / architect fees.
 This may be the “tip of the iceberg” meaning other work may have been done without permits and requires legalization.
 The “Why bother” reasoning (“Hey, my neighbor did it”)
 Nobody will find out,

In reality, after a permitted project is complete, the municipality issues an updated Certificate of Occupancy, which is  a document that shows the improvement was done in accordance with applicable regulations and makes the house or building more valuable. This is critically important-because banks, buyers, attorneys and title insurance agents must check that the physical property actually matches the records of the municipality. When it doesn’t – it usually stalls or kills the sale or refinancing! There are generally penalties to pay and additional steps to remedy certain conditions….and…….yes, the inspector has the authority to make you remove non-conforming construction or bring it up to today’s codes.

“Grandfathered” is not really a concept that building inspectors adhere to. If the project was filed, and granted a permit, built, inspected and documented –and then later the building code or zoning regulation changed, only then is that work  “grandfathered” as a pre-existing non-conforming condition. Typically the improvement that is being legalized is recognized by the municipality as “new” and needs to comply with current regulations.

So take the time to get your project approvals in order or get them legalized before you are selling or re-financing.

If you, or someone you know has questions, please feel free to contact

Article by Steven Secon