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Is there any penalty for knowingly listing a 4 bedroom house with an illegal, code-violating bedroom in the basement as a "5 bedroom" home?

Asked by Moving To Winchester, 01890 Mon Jun 6, 2011

I recently made an offer on a "5 bedroom house" in Winchester. Our inspector pointed out several costly problems with the house, including the fact the bedroom in the basement is illegal and constitutes a fire hazard. The seller's agent now says this shouldn't make any difference to the value of the property. I'm not blaming anybody for unknowingly listing it as a 5 bedroom. But even after inspection they continue to have it listed this way. We're in the process of withdrawing our offer because of the probable cost of repairing the house and bringing it up to code. But is this normal practice? Isn't misrepresentation against the law, if not a code of ethics? Just wondering if we're going to keep running into this when we read about houses in the future. Thanks.

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3 other properties have a 5th bedroom listed in the basement, they may have better egresses I can;t tell from the photos online but it does appear to be a fairly common practice.
1 vote Thank Flag Link Mon Jun 6, 2011
Hi, It's a blatant mis representation which all agents should avoide, always. Whenever I list a property I go to the town hall and verify all of the property info, otherwise it can create unnecessary drama for all involved.

1 vote Thank Flag Link Mon Jun 6, 2011
I know the exact house...It is a great neighborhood particularly if you have kids. Halloween is crazy with all the kids walking around. Having someone local to Winchester looking out for you will help. There is another house in Winchester with a bedroom in the basement...it may be more common than folks would like to admit.
1 vote Thank Flag Link Mon Jun 6, 2011
Winchester is a very particular market. If you'd like some assistance with it I can recommend several great agents/brokers to assist you. Let me know if that would be interesting for you. The several different sections of Winchester each have their own character, home types, amenities etc. Having a local experienced buyers agent to assist you will be a real great tool in your homebuying toolbox.

Hope you're not too fustrated with the process but fortunatly here on Trulia you can vent & realize that if it happened to you, there are probably dozens it's happened to elsewhere, enjoy your day :)
Web Reference: http://www.MedfordHouse.com
1 vote Thank Flag Link Mon Jun 6, 2011
Winchester is a great community. I think I know the property you are referring too. If you don't move forward with this property and it sounds to me like you are moving in that direction. I would suggest spending a little time driving around town to figure out which part of town you want to be in. If you have any questions about the town, don't hesitate to ask. I currently live in winchester.
1 vote Thank Flag Link Mon Jun 6, 2011
As part of your due dilligence you or your buyers agent should have went to Winchester town hall and found out what the city has it as. Not only on the public record field card but also the building department. They are the ultimate authority whether the room was permitted and/or allowed. I can see in some ways that having a 5th bedroom (properly done & allowed) would make the property more valuable. The local cities & towns have become quite strict especially as it pertains to construction without a permit and bedrooms without proper egress.

Our MLS around here (MLS-PIN) has sections to disclose the source of the living area & how the ultimate # was come by. Square footage & features can, is and will continue to be a source of contention due to several factors including: listing agents, homeowners, city/town officials interpretations, appraisers, lenders and so on.

As far as a code of ethics violation, unless the listing agent/brokerage are Realtors then they don't have a code of ethics. Only members of The National Association of Realtors has a code of ethics. Non-Realtors only have state real estate laws, licencing laws and errors & ommissions guidelines. Being a Realtor add a code of ethics to all those.

If you are using a buyers agent they should be able to better advise you going forward on verifying properties & issues such as this. We'd love to see this forever disappear as an issue but these things unfortunatly happen from time to time.

Good luck in your search,
Web Reference: http://www.MedfordHouse.com
1 vote Thank Flag Link Mon Jun 6, 2011
If this was in MLS it should have matched the public record (found at the town hall), or at least had an explanation if it didn't. The listing agent represents the seller, so perhaps they just took the info from the seller, who claimed they had a 5 bedroom. I'm not sure it was illegal, since there's really no uniform definition of a bedroom. Each town has it's own way of determining what constitutes a bedroom. So often the listing agent either uses the town record or the sellers input. But I think it would have been better for the listing to say 4 bedrooms, with room in basement ued as 5th. Good luck with your next one, and if you aren't using a buyer agent, please consider doing so, for your own protection.
Web Reference: http://Homes.debn.net
1 vote Thank Flag Link Mon Jun 6, 2011
A bedroom has a closet and a window. You should be able to tell from the listing sheet on what level a bedroom is.
Flag Sat Apr 7, 2012
The question about is it a code of ethics violation is valid. Did the agent know or should they have known is the question. It certainly is a material fact that needs to be disclosed, that is about all that has to be done. Rather than removing the offer, ask the seller to bring it up to code or you will remove the offer. It could be a simple thing or something more difficult. For sure ask to have any fire hazard taken care of if there really is one. I have seen inspectors bring up some bogus issues.
1 vote Thank Flag Link Mon Jun 6, 2011
Do you have to "disclose" things that are clearly visible to anyone who looks at the house? I doubt it. Disclosure is accomplished by letting the people look over the house.
Flag Sat Apr 7, 2012
Your inspector could be wrong as well. I know very few if any that know the building codes in every town they do home inspections in.

It's not illegal to have a finished basement in Winchester and I am not sure how a finished basement would make it a fire hazard. If it had a kitchen in the basement I could understand... but having a room with a window and a closet in the basement shouldn't make it a fire hazard.
But I am not a building inspector nor an attorney...just sharing my opinion and thought process.
1 vote Thank Flag Link Mon Jun 6, 2011
According to ASHI, I believe, inspectors are not supposed to comment on code issues, as they can vary widely from town to town. I'm a bit suspicious of the inspector.
Flag Sat Apr 7, 2012
In Colorado, the MLS gives the listing agent the opportunity to say if all bedrooms "conform" or not. Not sure about MA, but just because a bedroom isn't conforming doesn't make it illegal. Is it possible your agent missed the part that says not all bedrooms conform? Do you really need 5 conforming bedrooms? For example, if one is going to be used as an office, then is it really that necessary to make sure it's conforming? In the future, make sure your agent asks the listing agent if all bedrooms conform.
1 vote Thank Flag Link Mon Jun 6, 2011
basement bedrooms shouldn't be listed as bedrooms; you can complain to MLSPIN, not to mention GBAR, not to mention the Commonwealth. This is why buyers should be careful to work with an experienced buyer's agent.
0 votes Thank Flag Link Sat Apr 7, 2012
To both be fair and to bring this thread to a close, the house has now been re-listed as four bedrooms.

Many thanks to you all for your comments and advice.
0 votes Thank Flag Link Wed Jun 8, 2011
Thanks, again, Andrew. I guess I'm reacting to the Inspectors judgement, and then the agent's claim that the value of a 5 bedroom house is the same as that of a 4 bedroom house. There may very well be legal basement bedrooms, but this isn't one of them. They listed it this way for a reason, and still haven't changed the listing.

I tend to agree with Chris's answer.

Thanks to you both.
0 votes Thank Flag Link Mon Jun 6, 2011
Andrew & Scott,
Thanks for the follow-up. We spent quite a bit of time driving around Winchester, just getting a feel for the area. We like The Flats very much and that whole Wedgemere area best. Being close to the train and town center was most desirable for us.

Our timing has been such that there wasn't a lot in that area, however. The house we put the offer on is newer construction up around Ambrose elementary. Mahoney's and Whole Foods make the neighborhood more appealing. It's probably between 40% to 80% more expensive than the other houses around it, though. The current owner bought it at near the peak of the market and probably won't come down enough to enable us to buy it and fix it up properly. Sadly, our inspector kept pointing out signs of neglect that will now cost quite a bit to fix. Probably best to walk and cut our losses. Never expected some of these problems in a newer house.

We also liked the area around Myopia. Some nice houses on that street leading to the golf course and country club. Seems odd that a couple of houses there have been for sale for so long.

We have a buyer's agent who is very good and with whom we have great chemistry. He really gets what we're looking for. Unfortunately, he's not from Winchester, so he may not get all of the latest info as soon as the locals.

Glad I found you all on Trulia. It's a great resource. If you guys have any advice on neighborhoods, hot new houses coming on the market or anything else Winchester-related, we're eager to hear it. I'll keep checking this thread.

Thanks, again!
0 votes Thank Flag Link Mon Jun 6, 2011
Thanks Tim & Scott. Really appreciate the responses from all you RE pros.

We're currently trying to house hunt from out of town, which is expensive. I feel that we kind of wasted a lot of time and money pursuing this house, ultimately only giving the seller a list of things he needs to fix. Just want to know if this is standard operating procedure in the industry. Doubt that it is.

We LOVE Winchester, btw, and really look forward to living there... As soon as we can find a house.
0 votes Thank Flag Link Mon Jun 6, 2011
Thanks, Andrew. Pretty sure this Inspector is up to speed. The fire hazard comes in -- if I remember what he told me correctly -- at the State level. There is inadequate egress for it to be a bedroom, with one small window up near the ceiling in the room. Adults would be hard-pressed to get out that way. Kids would have no chance. And fire fighters probably couldn't get in or out with their equipment on.
0 votes Thank Flag Link Mon Jun 6, 2011
Thanks, Sally. But the Inspector is the one who called it "illegal." The current owner also has the house staged with a queen-sized bed in this room, so they are clearly representing it as a bedroom.

The question isn't about how many bedrooms I need, but rather about how far a seller can go to maximize the house's asking price... And whether there are sanctions against misrepresentation.

Thanks for your answer!
0 votes Thank Flag Link Mon Jun 6, 2011
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