What's wrong with the third floor?
October 31, 2017 7:45 AM   Subscribe

I live on the first floor of a two-family house, and the upstairs apartment is currently vacant. This upstairs apartment has a large open room on the third floor, but in the current craigslist ad this room is described as "generous attic storage," implying to me that the landlord believes that it's not supposed to be used as living space. The room is finished, with hardwood floors, painted walls, etc., and it has at least two windows. Why would this room be off-limits?

The landlord said something to us along the lines of "no one's supposed to use the upstairs room but they always do," which I intially interpreted to mean that the third-floor room is not supposed to be used as a bedroom - there is only one set of stairs to the third floor, and the third-floor windows are presumably too high to qualify as a secondary means of egress without a fire escape, plus there's no door to the room (it's open to the stairs) and no closet. I 100% get why the room shouldn't be used as a bedroom.

But I can't figure out why this room would be off-limits as living area, as is implied by the ad - if I were advertising it I would definitely mention this large bonus room, which takes the apartment from ~1000sqft to ~1500sqft. I have seen ads for similar apartments that would describe this room as "potential yoga room/office/some other dumb suggestion." There isn't even a door between this room and the second-floor living area (just stairs). Is my landlord misinformed or am I missing something?

FWIW, it feels very plausible that the landlord could be wrong about this because she makes a lot of dumb mistakes, in spite of owning a lot of property. On the anti-tenant mistake side: I have multiple illegal clauses in my lease; even though parts of the house were renovated relatively recently (within the last 10 years) the renovations are not all up to code (e.g. no bathroom fans); and the upstairs apartment was never deleaded in spite of the fact that small children lived there for years. On the "hurting the landlord" side: the upstairs apartment has been vacant since July because the landlords were too disorganized to get it cleaned and painted until last month; they didn't notice that the previous tenants of my apartment had two cats, a chinchilla, a rabbit, and ~15 pet rats in the supposedly no-pets-allowed apartment (and for all they know I could have an equal number of pets, since they literally have not been inside the apartment in the four years I've lived here). The landlords' realtor doesn't seem to be any better-informed than the landlords.

Obviously I would like the upstairs apartment to be as unattractive and un-rentable as possible because having no upstairs neighbors and the whole yard and driveway to ourselves is great. But I'm curious!

Location: Somerville, Massachusetts.
posted by mskyle to Home & Garden (18 answers total)
Best answer: Attics that are designed for storage only usually don't have floor joists that are big enough to support the code-required loads of a living space. Attic floors typically only need to support 40 lb/ft^2, where as a living space needs 100-120 lb/ft^2.
posted by hwyengr at 7:53 AM on October 31, 2017 [13 favorites]

Does it have a low ceiling? That might disqualify it as living space under local housing code.
posted by exogenous at 7:53 AM on October 31, 2017

Best answer: Probably a housing code thing. Are there radiators/heating vents up there? If there's no climate control, it can't be living space. There are all sorts of things in housing codes that can disqualify rooms as being considered technically "a bedroom" or usable living space.
posted by soren_lorensen at 7:55 AM on October 31, 2017 [4 favorites]

An increase in usable space also usually means an increase in property taxes.

If the finished attic wasn't done to code and without permits (which seems 99.9% likely according to your description), that means the city doesn't know about the change in square footage. Claiming it's "not usable" is a dodge that will eventually fail.
posted by JoeZydeco at 7:57 AM on October 31, 2017 [8 favorites]

Yeah, I once rented a second floor apartment with access to the third floor attic, two lovely rooms--but apparently they weren't structurally sound enough for me to do more than store some things up there and use one as my yoga room.
posted by TwoStride at 7:58 AM on October 31, 2017

In some places, if there's not two methods of egress, it's not allowed to be counted as livable space. Usually windows would count as a method of egress, but since it's the third floor, there's no way to safely drop down to ground level without major injury.
posted by deezil at 8:02 AM on October 31, 2017 [2 favorites]

My friends in neighboring Medford own their house outright but couldn't, until after the sale went through, put anything in their finished third floor room/attic. It's a load bearing thing, as far as I know. They use the room but if they ever were to sell the house they'd be required to say it's unusable for anything but storage.
posted by lydhre at 8:17 AM on October 31, 2017 [1 favorite]

The stairs might not meet the rules for living space.
posted by Mitheral at 8:27 AM on October 31, 2017

I had a condo in south Medford, very close to Somerville, and we had a 2nd floor unit with huge 3rd floor attic. Previous owner made 10% progress on transforming attic into living space and then the project was abandoned because:

-windows too small
-staircase had not enough headroom, you had to duck to get up, even though it was full size stair treads
-something about a certain percentage of the room (like 33% or 66% or something) had to have head clearance of about 7' tall, and that worked out to be a tiny strip down the middle of the room

So it would have needed major renovation, like changing the roof line, to make it livable space. Making large exterior changes can sometimes require approval from city, or historical preservation boards, etc. One of my co-workers in Boston spent 18 months getting approval to add a garage door. To a garage. That used to have a door. It required architects and drawings multiple steps of approval.

Sounds like this is a similar situation here, just that your landlord got further along before realizing it was not up to code. You can do lots of interior work before running afoul of inspectors - but changing the roof line or adding dormers and windows? not so much.

Rents are crazy high in these neighborhoods so there's not a lot of incentive to spend money if the place is earning lots of income anyway.
posted by sol at 8:37 AM on October 31, 2017 [2 favorites]

In addition to all of the above, renters are absolutely going to read "additional living space" and think "third bedroom." Especially if it's priced as a two-bed, especially in Somerville's tight market. I suspect your landlord doesn't care too much if it's used as an office, but wants to head off any renters who are hoping to sneak in a third roommate, and this is the easiest way of doing so.
posted by Metroid Baby at 9:16 AM on October 31, 2017

Response by poster: I don't think it can be about the property taxes, because on the assessor's report the bonus room is reported as living area (450 sqft living area on third floor, 750 sqft total, including the actual attic off the bonus room). I don't think it's an accessibility thing either (stairs or ceiling height) because my 6'4" fiancé was able to maneuver comfortably up there, and we've certainly been to plenty of open houses for condos in the area where he was uncomfortable even on the second floor.

I think the most likely answer is lack of heat, with the load-bearing attic floor thing another distinct possibility. The house is ~110 years old, originally a single-family, converted to a two-family probably in the 60s or 70s by the family of the current landlords. The third-floor room could have been originally attic, then living space after the conversion, and then re-designated storage space after someone paid more attention to the building code. The forced-hot-air ducts are mostly original (fancy cast-iron grates!) but did not originally extend into our kitchen or bathroom, so I would be surprised if the third floor had heating ducts regardless of whether it was originally living space or storage space.

Of course if it's not living space they should apply to the assessors' office to get their valuation for property tax reduced, but that would presumably involve someone from the city inspecting the house, which knowing my landlords they probably want to avoid! If I were them I would do what everyone else on the street seems to be doing and sell the place to flippers to be condo-converted, but they've told us the house will be sold "over their dead bodies."

Also yes, the house is 100% haunted, but I think the second floor is just as haunted as the attic.
posted by mskyle at 9:19 AM on October 31, 2017

Even if you satisfy all other requirements - heating, stair dimensions, ventilation, ceiling clearance, etc - you need two actual stairs to get to a 3rd floor, although there may be some exception for square footage under a certain size. That size is probably less than 400sf.
posted by LionIndex at 11:17 AM on October 31, 2017

Where I live we are limited to 2 storeys above a garage and if you stop using the garage as a place for storing cars (and say use it as a workroom) then the city could make problems for you. Maybe their is a similar zoning restriction in your area and the landlord had used it as a living space before and a city inspector came and told them not to or there would be consequences and they don't want to try their luck.
posted by any portmanteau in a storm at 12:05 PM on October 31, 2017

Even if you satisfy all other requirements - heating, stair dimensions, ventilation, ceiling clearance, etc - you need two actual stairs to get to a 3rd floor

While this is plausible, there are plenty of "Philly style two families" in Medford, Somerville, and Arlington, typically with all the upper apartment's bedrooms on the 3rd floor, and no means of egress except the primary stairway and the windows. (as an aside, while the term "Philly style" is widely known in the Boston inner suburbs, nobody seems to know where it came from)
posted by mr vino at 12:10 PM on October 31, 2017 [1 favorite]

Sure. Built when?
posted by LionIndex at 1:16 PM on October 31, 2017

If the third floor of this place wasn't used as habitable space previously, but the house had been split up under relatively current code, it would have to meet the code at the time of the split. Older buildings can be grandfathered in, but new use situations generally require application of current code. So, if a Philly style place was built in the 50s, it might have been ok then, and as long as its being used for the same purpose is still ok now.
posted by LionIndex at 1:20 PM on October 31, 2017

Response by poster: If the third floor of this place wasn't used as habitable space previously, but the house had been split up under relatively current code, it would have to meet the code at the time of the split. Older buildings can be grandfathered in, but new use situations generally require application of current code. So, if a Philly style place was built in the 50s, it might have been ok then, and as long as its being used for the same purpose is still ok now.

FWIW, the house I live in is old - earlier I guessed it was converted in the 60s or 70s but actually now that I'm thinking about it, based on the pink upstairs bathroom it might was likely a bit earlier (this would also line up with my landlord's age and my guesstimate of when his family immigrated to the US). Of the more recent history of the house I know that ~10 years ago, my former upstairs neighbor called in a city inspector who dinged the landlords for several code violations, resulting in the replacement of the windows and the renovation of both kitchens and the downstairs bathroom but no changes to layout.

I don't think a top floor with no secondary egress could be legally represented as a *bedroom*, regardless of the age of the house (in fact I've gone to open houses for a couple of places with third-floor "offices" and "bonus rooms"). Of course some people will use those rooms as bedrooms, but a landlord would be very unwise (and unethical) to market them as such.

I have no argument with the idea that the room should not be used as a *bedroom* - I was just having trouble understand why it can't be used at all (I have been to other 2nd-and-3rd floor apartments in Somerville where the living room was on the third floor and the bedrooms on the second, presumably for this very reason).
posted by mskyle at 1:46 PM on October 31, 2017

The rental properties in MA are governed under the state Sanitary Code and, from what you're describing, the attic space misses the "minimal standards of fitness for human habitation" for more than one reason.
posted by Iris Gambol at 3:46 PM on October 31, 2017

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