Illegal apartment in owner occupied multi-family (apartments, leasing, tenant, rental)

[tabinekotaro]

I will ask my question first before giving the back story:

Can the owner of a multi-family home live in a unit that would be considered illegal if rented to an outside tenant?

Background:
10 years ago, I bought a multi-family home and have resided in it ever since. Legally, it has two apartments that have separate addresses (one street number for the 1st floor and one for the upper floors). The issue is that there are actually, practically speaking, three apartments in the house: the first floor, the second floor, and an attic apartment. When I bought the house, both the 2nd floor and attic were occupied by separate tenants. The previous owners told me that technically the two upper floors were one apartment and that code enforcement had always looked the other way and that we were "grandfathered in." I didn't think too much about it, other than that it was odd, and I was a totally novice landlord.

Over the past few years I have begun to feel uncomfortable with the situation. No one who looks at the attic and the second floor could ever argue that they are one apartment. The attic apartment has two issues, I believe--one is zoning, and the other is that it only has one exit in case of emergency.

Can I as the homeowner legally live in the attic space? I am considering ending the tenant's rental agreement (month-to-month for the past 10 years) and moving up there myself. It actually suits my needs better than the larger units on the first two floors, and I worry about my liability issues should anything ever happen to the tenant living upstairs.

Any advice is greatly appreciated!

[JONOV]

Who would stop you? I mean, I guess if there were a nosy neighbor they could call you in, but they haven't done that yet so why would they start now?

I guess the other thing to consider is the second floor tenant, who could in theory claim they are leasing it. But it doesn't sound like that's the case.

[AZ Manager]

Hard to say but it could be argued, assuming the 2nd and 3rd floor have one shared address, that you are renting out a portion of your residence. As long as you are allowed to live in the space at all, it is legally habitable with a proper certificate of occupancy, you will be fine. People rent out rooms in their house every day with no problem.

[cully]

When you said attic,the first thing I thought of, as you mention, is secondary egress.

Places I'm familiar with allowed the attic with only one egress to be used for tenant storage, entertainment space available to all (tv, card table) or for office space available to all (computers, library, printer). Occasional use stuff. Although thinking that through and owner might be concerned, for example, suppose someone fell asleep in front of the tv. Or is anything a tenant stores up there a fire hazzard,especially in the increased heat of an attic.

BUT all those places allowed an owner to have just one egress.

The idea being the owner is more familiar, also different insurance issues, different protections for tenants vs. owners.

But, over time, I thought...hey, what about the owner caught in a fire on the third floor. And only the one set of stairs down into what's already on fire. You do want smoke and fire alarms in your home anyway. And extinguishers throughout, including separate ones in the kitchens.

I found this, as an example of the fire safety law. It's for PA but you can search fire exit laws for wherever your property is. The code varies by (a), (b), (c), (d) And also recheck dates:

http://www.pacode.com/secure/data/00...82/s82.17.html

[tabinekotaro]

Thanks for the replies, everyone.

Yes, secondary egress is the big issue for ANYONE living there, though as the owner I would have access to the secondary egress of the 2nd floor apartment. (The attic and the 2nd floor have separate entrances through a shared stairwell, and the 2nd floor has another separate entrance of its own.) This still poses issues since you have to enter the main stairwell that serves both apartments to enter the 2nd floor and use its exit, so if that is blocked it's not really a solution.

I do have a linked fire alarm system that connects all floors, including basement, so that if smoke is detected in one place, all the alarms go off. It makes me feel slightly better about living there myself, but I still think that I need to at the very least stop renting that space to anyone.

The property is in WV, FWIW.

[chiluvr1228]

What happens to the tenant living in the attic who has been there for 10 years? Are you planning on throwing him/her out? If anybody would report you for having an illegal apartment it would be that tenant.