Albany, NY Accessory Structures: ADU Owner Occupancy (2026)

The September 2025 USDO amendment codifies owner-occupancy as a use standard rather than a permit condition, meaning it runs with the land and is not waivable through variance in the ordinary course. The 24-month biennial certification places affirmative reporting duty on the owner and gives the Department of Buildings and Regulatory Compliance a regular checkpoint for verifying compliance. Failure to file the certification, or filing a false certification, exposes the owner to USDO enforcement under §375-5 and to potential criminal liability under New York Penal Law 175.30 for filing a false written statement. The owner-occupancy requirement does not specify which unit the owner must occupy — primary or accessory — giving flexibility for downsizing seniors who move into the smaller accessory unit and rent the principal dwelling, as well as homeowners who continue to occupy the principal dwelling and rent the ADU. The use standard's limit on tourist or transient rental under 30 consecutive days reinforces the owner-occupancy framework by preventing the ADU from being converted to an Airbnb-style operation. New York has not enacted statewide preemption of municipal owner-occupancy rules for ADUs (in contrast to California AB 671 and AB 2221 which generally preclude owner-occupancy mandates on permits issued before 2025 with limited exceptions). Albany's separate Rental Dwelling Registry (Chapter 231 of the Albany Code) requires registration of non-owner-occupied rental units; an owner-occupied ADU is generally exempt from the rental registry, but if the owner moves out and rents both units, both must register. Private CC&Rs in some Albany neighborhoods (parts of Buckingham Pond, New Scotland, Whitehall) may impose additional owner-occupancy restrictions enforceable under New York Real Property Law and Condominium Act.