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How Many (Legal) Bedrooms And Baths Does This House Have?

By David Hamerslough

June 03, 2021

While cancellation and deposit disputes remain the number-one real estate legal dilemmas in our current market, the nature of the next most prevalent claim might surprise you. It has to do with how many legal bedrooms and bathrooms exist at a residence.

Statements involving the number of bedrooms and baths are made in the MLS, marketing material, disclosure documents, AVIDs, inspection reports, property profiles, appraisals, and other transactional documents. These statements often are attributed to a source of information, including “public records,” County or City records, the seller, tax records, property profiles or other computer-generated data, a third-party professional such as an architect, or some “other” sources.

Claims involving this issue may involve agent liability under Civil Code § 1088 (for mis-information inputted into the MLS), common-law misrepresentation, statutory disclosure liability under Civil Code § 1102 et seq., the adequacy of an agent’s visual inspection, and common-law fiduciary duties.

While the outcome of this type of dispute turns on a number of facts and circumstances, I have discovered some common issues, misunderstandings, and urban myths while handling these types of disputes. The purpose of this article is to bring some of these to your attention.

Issue #1: There is no universal definition for the term “bedroom.”

What constitutes a bedroom turns on how the government authority with jurisdiction over the property defines that term. Factors that may impact that definition, depending upon the jurisdiction, include whether the room has a closet, its proximity to a bathroom, ingress and egress to and from the room, functioning egress windows, functioning smoke detectors, the height of any window in the room, ceiling height, and various other factors. Buyers, sellers, and real estate licensees may need to take this lack of a universal definition into consideration rather than solely relying on urban myths regarding what constitutes a legal bedroom in a particular jurisdiction.

Issue #2: The actual source of the data regarding the bedroom/bath count is critical to an understanding of the data provided, since different sources uses different criteria to determine the bedroom/bath count.

Most cities and counties have multiple departments, including Building, Planning/Zoning, Public Works, Environmental Health, Code Enforcement, and the tax assessor. Each of these departments is responsible for a different activity in relationship to the legality of, among other things, bedroom and bath counts. Building departments generally are focused on whether the construction of a particular room met building codes. Planning and zoning departments generally determine whether the use, size, and location of a room or structure meet or violate development and land-use issues such as the maximum development area, setbacks, and other land-use limitations. Environmental health is generally concerned with regulating the discharge of sewage and waste from a property. Environmental health issues often arise where properties are on septic systems and/or utilize a well as their water source. The tax assessor’s office is concerned in general about generating revenue as a result of improvements made to a property. The tax assessor typically does not evaluate, much less confirm, whether an improvement has been done or meets the criteria of the building, planning, zoning, and/or environmental health departments. They appraise an improvement made to a property and tax on the value of that improvement, and they don’t necessarily exchange any information with other departments. Therefore, an attribution to the tax records or tax assessor does not necessarily mean that the bedrooms and baths are legal from the perspective of the building, planning, zoning, and/or environmental health departments.

Issue #3: Source attribution based on non-specific terms such as “public records,” County and/or City records, or a property profile or other computer-generated data may not accurately reflect whether the bedrooms and bathrooms are legal.

The first thing to consider is what is the definition of terms such as “public record” or “County/City records.” When such a term is used, ask yourself, what is the underlying data source ( which governmental entity or department, e.g., Building, Planning/Zoning, Environmental Health, Tax Assessor, etc.) that has been relied upon? Without that knowledge, a buyer, seller, and/or real estate licensee may not be in a position to know, or assume, what actual records or data are being relied upon and whether the bedrooms and bathrooms are legal from the standpoint of every department within the jurisdiction.

Issue #4: What does attribution to “other” mean?

Without some clarification on what the actual data source is, an attribution using this term will most assuredly be unclear. Presumably, this term is used to refer to some source other than the seller, but without defining or identifying that source in some other documentation, there may be uncertainty as to whether that source is accurate and reliable.

Issue #5: The legality of a bedroom/bath count may be clearer based upon what information/data is not in available records.

Often, copies of permit records are provided by a seller as part of a disclosure packet or are obtained from an online source. When that occurs, the interpretation of those records can be challenging and it would be best to leave that determination in the hands of an appropriate expert, such as a land-use consultant, engineer, and/or contractor. One issue that such a professional would look at is whether there are final building permits for all the bedrooms and/or baths in the particular structure. If not, then the absence of final permit documentation on all bedrooms and baths may require further investigation and evaluation.

The foregoing is not a complete list of all issues that can arise with respect to determining the legality of bedrooms and bathrooms, but these are some of the more common issues that I am seeing in claims of this nature. It may also be significant if there are discrepancies in the information supplied by different data sources regarding the bedroom and bathroom count and/or legality.

The best practice is to make sure that any advertisements regarding bedroom/bath count should be as specific as possible regarding the actual source of data that is being used and that any known discrepancies are disclosed to all potential buyers. At no time should anyone use the term “legal” in describing any rooms, units, or structures.

Keeping these issues in mind may help prevent claims between buyers, sellers, and real estate licensees on this subject.

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