The Grandfathering Clause: When Does It Apply?

The New York City Building Code prohibits apartments smaller than 400 square feet, yet you can rent apartments half that size.  What gives?  Aren’t those apartments illegal?


This is known as a “grandfather clause,” or when an old rule continues to apply to certain existing situations and a new rule applies to all future cases.  In the case of small apartments, the pre-1968 Building Code allowed microapartments, but the following Building Code instituted a minimum square footage of 400 feet.  The new rule doesn’t apply to existing apartments, but it has to all apartments built since.  Hence, old microapartments are technically legal.

The grandfathering clause exists because bringing old buildings up to new code standards every time the Code was revised is not only impractical, but cost-prohibitive.  In most cases, Building Code changes aren’t retroactive, and old buildings are simply left as-is under the clause.  However, not all code changes include grandfather clauses.  Generally speaking, code changes involving immediate safety and hazardous condition, such as updates to the Fire Code, apply universally to all buildings.

Additionally, grandfather rights aren’t necessarily permanent.  Grandfathered features are often required to be updated to the new code if they’re being renovated in some way.  For instance, suppose your bathroom was built before the Americans With Disabilities Act (ADA) was passed, which mandated accessible bathroom dimensions for the disabled.  If you chose to renovate your bathroom, the renovation would have to meet ADA standards.  If it didn’t, your new bathroom would be considered illegal, even though your old bathroom wasn’t.  The only way your renovation can avoid updating to the new code is if the necessary changes are impractical or financially unreasonable in some way.

It’s important to note that old work that was done without a permit can never be grandfathered in.   In the first case, the work was initially built legally and is only “illegal” now because the requirements of the Building Code have since changed.  However, work done without permits, even if it was a long time ago, was never legal to begin with.

3 thoughts on “The Grandfathering Clause: When Does It Apply?

  1. The total frontage of my house in queens, ny, is 25 from corner lot to corner lot and the fenced area, in the front is 8 feet from the base of the house to the street and 12 feet long from driveway to front door. Driveway is concrete. Front door has concrete steps. There is no ground space without concrete or tiles. the fenced area has tiles and has had them for over 20 years. Now the City has issued a warning to me saying that I need to have plants in a 60 sq feet of frontage area. It means that I have to cut concrete and tiles in order to expose 4 feet by 15 feet of dirt and creatre a planter out of the exposed area. Does the city have the right to make me cut the concrete and tiles in order to create a 60 sq feet of garden?

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  3. Can a 2 bed room house built in 1925 in Brooklyn be restored to its original floor plan of 3 bedrooms even though the square footage of each new bed room may be less than what the latest building code says a legal bed room needs to be

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