Legal Considerations for Accessory Dwelling Construction

This article discusses a few legal considerations involved in constructing additions to residential property for purposes of occupancy by relatives or formal lease arrangements.

What are the legal considerations for homeowners who want to build an accessory dwelling unit on their property to rent in Atlanta, Georgia?

1. What are the zoning restrictions to building additional units on single-family property?
In the City of Atlanta, properties zoned residential must meet minimum building setback requirements.  Setback refers to the physical placement of structures on the property. Depending on the zoning classification, minimum front setbacks vary from 20 to 60 feet; side setbacks from 5 to 25 feet; and rear setbacks from 5 to 35 feet.
Homeowners should also be keenly aware of permissible lot coverage restrictions.  Lot coverage is the percentage area covered by the footprints of structures lying on the property. This includes the main structure, but also garages, impervious driveways, swimming pools, patios, decks and parking spaces. Depending upon the zoning classification, maximum lot coverage can range from 85% down to 25%.
2. What about grandfathered provisions?
A common situation arising during the planning stage is the discovery of “grandfathered” setback violations. Through the permitting process, a survey will be required that sometimes discloses a setback violation that was otherwise permissible at the time of original construction. In these situations, the City of Atlanta may require a variance, which involves notice and hearing, before the new building permit will be issued.
3. What permits are needed?
The City of Atlanta requires a building permit for construction and charges $5.00 per $1,000 of total cost/valuation of work plus a $25.00 technology fee ($100 minimum).  Separate permits are required by subcontractors for electrical, plumbing and HVAC.  A separate water meter permit must also be obtained from the Department of Watershed.  A separate business permit and license issued by the police department may be required to legally lease the premises.  Building permits are made at Atlanta City Hall and the initial plan review takes up to ten business days.
4. What are the occupancy rules?
In addition to meeting the standards for owner-occupied, single family structures, rooming or boarding houses must meet other criteria. Criteria include: at least one flush water closet, basin and bathtub or shower for each eight persons including members of the homeowner’s family. These facilities must be inside the dwelling, as opposed to the main dwelling structure. Rooms for sleeping must contain at least 100 sq ft of floor space and 50 sq ft for each additional person. If there is a shared kitchen, there must be at least one refrigerator per twelve people. There must also be a common area of at least five square feet per dwelling, or a minimum dwelling size of 250 square feet.
5. What are the pros and cons to building and renting out an accessory dwelling space in Atlanta?
Homeowners may continue to benefit from their homestead exemption by renting out their accessory dwelling space. In contrast, an investment property would not qualify for the exemption.  While rental space can generate extra income, homeowner’s should consider the offset of construction and maintenance costs.  Additional drawbacks include managing landlord-tenant disputes, potential parking issues and increased expenses such as hazard insurance premiums. The homeowner may also wish to consider in the planning stage, whether the property can later be subdivided.  Zoning requirements combined with unique property characteristics often makes subdividing difficult, expensive to implement, or impossible.

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