Legal Questions Answered By Griffin & Murphy, LLP

Griffin & Murphy, LLP, is a boutique law firm in Washington, D.C. concentrating its practice in real estate law (including development, finance, leasing, zoning and condominium conversions), as well as estate planning and probate, civil litigation, and business law. The attorneys of Griffin & Murphy, LLP are licensed to practice law in the District of Columbia, Maryland and Virginia. Griffin and Murphy, LLP was founded in 1981.

Please send any legal questions relating to real estate, rentals, buildings, renovations or other legal items to princeofpetworth (at) gmail (dot) com, each week one question will be featured. You can find previous questions featured here.

Ed. Note: You can read about a basement dig out here and the first basement rental discussion here.

Question:

I have been following the discussions regarding basement apartments with great interest. As I am contemplating converting my basement into a legal rental unit, I have the following question. I understand that the DCRA points people to the IPMC on its rentmydcbasement.com site with respect to ceiling height. On its site, DCRA says that habitable rooms must have a 7 foot ceiling height. However, when you look at Section 404.3 of the IPMC, it says that basement rooms in one- and two-family dwellings occupied exclusively for laundry, study or recreation purposes, can having a ceiling height of not less than 6 feet 8 inches. So, my question is – – Can I have a legally rentable basement apartment that consists of a bedroom of at least 7 ft height, with a recreation room, kitchen, and bathroom at height of 6′ 10″? This would mean I would only need to dig out a portion of the basement (where the bedroom sits). I asked this question on the DCRA site, and the response was that it sounds like it meets the code, which is great. However, before I invest a lot of money in this basement project, I would like to know the legal answer in case inspectors do not agree with that interpretation. Thanks for your help.

Answer after the jump.

Answer:

There are laws as well as rules and regulations in place dealing with the lawful construction and legal use of basement apartments in the District of Columbia. You have reviewed these laws and regulations and you know what they say. We can also read them and tell you what they we think that they say. Architects are often tasked with the same request. We can each give you our best opinion as to what these laws and regulations provide. But if our opinions are different than those of the governmental authorities charged with enforcing these laws and regulations, then the official government opinions are going to carry the day. Your only option if you disagree with the government is to sue, which takes time and money and isn’t always successful.

The regulations to which you refer relate to accessory uses associated with the use of the interior of a dwelling. The big question here is whether these rules apply differently in the case of a single family dwelling with a finished basement as opposed to a two unit building with a basement converted to a separate dwelling. The more conservative view would be that all ceilings in the basement flat would have to be seven foot minimum because all spaces are being used as part of a single basement dwelling. The more liberal reading of the regulations will yield the result that you wish to achieve. Since the DC authorities are interpreting the regulations in the same manner as you are, I would accept their interpretation and not go looking for trouble where none apparently exists. Once you have an approved building permit providing for the build-out of the basement apartment in the manner you desire (make sure your intended use is specified in the building permit application), then if you build the flat in accordance with the approved permit, you will be entitled to receive a Certificate of Occupancy allowing for the use of the basement apartment as constructed. This is what I would do.

This response was prepared by Mark G. Griffin and Patrick D. Blake of Griffin & Murphy, LLP. The material contained in this response has been prepared for informational purposes only and should not be relied upon as legal advice or as a substitute for a consultation with a qualified attorney. Nothing in this response should be considered as either creating an attorney-client relationship between the reader and Griffin & Murphy, LLP or as rendering of legal advice for any specific matter.