Illegal living space?

We provide here a few questions that have been posted in the Community Forums and our answers to them.

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Q1

What constitutes a illegal apartment. We have a 1-family house. Upstairs we have a living room, bedroom, and bathroom. We added cabinets, refrigerator, and small electric plug-in stove. We have been told by a friend that it is illegal. Why is it called illegal? Is it because we charge rent for it? Is it legal as long as only a family member stays up there?

A1

There are a number of issues that can make a living space illegal. Some would be illegal only as a rental, while others would be illegal even if occupied by a family member, even by the owner.

A unit that violates zoning laws – for example two apartments in a single-family zoned parcel – would be illegal unless grandfathered because it was constructed as two apartments when a different zoning allowed such use.

A unit with building code violations could be illegal. Building code violations might include improperly installed electrical wiring or plumbing, failure to have a window in a bedroom, room sizes smaller than required by law, and numerous other potential problems. Most such problems would result because construction or remodeling was done without a building permit, as a permit usually requires following all building codes and passing inspections of the work. Again it may not be illegal if constructed according to building codes in effect when the work was done even though codes have since been upgraded.

The above issues technically make the unit illegal whether the property is occupied by someone paying rent or not, although it would not usually come to the attention of the authorities unless there is a falling out among the family members, a neighbor complains about too many cars parked about, or some other issue results in someone filing a complaint.

A unit that is otherwise legal regarding zoning and building codes could be considered illegal if rented without any registration or permit required by the jurisdiction where located. Many states and/or local jurisdictions have such requirements, with significant penalties when the laws are not followed.

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Q2

Would it be worthwhile to install separate water meters for a 4-plex? If so, what would it cost?

A2

It is certainly a good idea to have tenants pay for their own usage, particularly as water rates are expected to continue rising in the future, even substantially over the long-term.

The cost of installing water meters depends on both location of the property and how the property is plumbed. The cost of the meters themselves can vary substantially, from nothing to more than a thousand dollars each. The cost of the necessary plumbing modifications and installations can also vary substantially, from a few hundred dollars to more than a thousand dollars per unit, depending on how the building is plumbed.

If installing separate meters, where each tenant is responsible to the water provider for the unit’s bill, is not economically feasible because of the cost of the meters, you could consider sub-metering, whereby you obtain meters from other than the water provider at a significantly lower cost and you collect from tenants for their fraction of total usage as shown by the existing meter for the entire building. However, the necessary changes to the plumbing system might still be prohibitive. The only way to determine the costs of the two approaches is to (1) get meter prices from both the water provider and sub-metering vendors, (2) check out the current plumbing to get a preliminary idea of modifications that will be necessary so that you can judge estimates from plumbing contractors, and get estimates for the necessary plumbing modifications from qualified contractors.

Another solution that is relatively low cost, though somewhat less desirable, is that you allocate water usage among the tenants in accordance with some quantifiable and equitable method. One method often used is to allocate according to number of occupants. Since most water uses vary in proportion to occupants, this is usually considered more equitable than basing allocations on unit area or even number of bathrooms. Preventing the use of common area water for washing vehicles can help keep the landlord’s water costs down.

Keep in mind that, no matter which route you go, you would not be able to change the terms of a lease during the lease period or with the required notice for month-to-month tenants, usually 30 days.

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Q3

I have a tenant that is granted mercy living rights to a home because she has a few things in the house and has mail coming there. She never did actually live there, but the person that did died and now they are trying to say they lived there. Do I have any rights at all over this person? I am also executor of the will of the legal occupant.
I plan to evict, but want to know if I can go in as soon as she says she has all her stuff and change the locks.

A3

With over 30 years in the real estate management business in several states, I have not before heard of “mercy living rights.” Is this something provided by statute in your state or something provided by the lease agreement? Also, you say that you represent the deceased occupant, but don’t state whether the deceased was the owner or a tenant, with the remaining person claiming to be a tenant having been a co-tenant or a subtenant.

Your rights may depend on a number of details that you do not mention, so I can’t respond to the general question of what rights you might have. You call the remaining person a tenant and if the person is a tenant you should have all the rights granted under the statutes of your state if the deceased was the owner.

In general, if the tenant has vacated the premises and the deceased was the owner, you can probably take possession and change the locks. However, if there is any question regarding whether or not the tenant has vacated, you need to be careful. Evidence of vacating might include turning in the keys and removing all belongings.

If you are not familiar with those statutes, I recommend that you consult a competent landlord-tenant attorney rather than doing something that might cause problems for you.
If you wish further help, you’ll need to provide additional details, including answers to questions I’ve raised.

This entry was posted on August, 2010 and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.