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The Amazing Disappearing Bedroom
June 4, 2013 12:12 PM   Subscribe

I'm starting the process of selling my house. It turns out that one bedroom is not actually large enough to be a legal bedroom in this state --- it is 60 sq ft and the minimum in NY is 70. So apparently mine is a two bedroom house instead of a three bedroom. When I bought the house, it was officially represented as three bedrooms. Do I have any recourse?

I learned this today from a seller's estate agent. She insists it must be listed as two bedrooms when I sell, and to do otherwise would be a breach of ethics.

Six years ago, when I bought the house, it was listed as having three bedrooms, and also recorded as three bedrooms with the county assessor's office. Before I bought the house, I directly asked my buyer's agent if this bedroom was legal, and she told me not to worry about it. (The minimum square footage code has not changed in the meantime.)

This may have a significant impact on resale value; exactly how much is unclear. No one doing a walk-through of the house would think this is much of a bedroom, so it is mostly a question of how the house is listed on paper and how it is compared with similar listings to assess value.

My question is: Is it possible that there was professional negligence involved at the time I purchased the house, on the part of the seller's agent (for listing a house incorrectly), the buyer's agent (for dismissing my apparently correct concern), or the assessor I hired to evaluate the house (whose written evaluation counts three bedrooms and also contains other mistakes). Is this worth approaching a lawyer for?
posted by qxntpqbbbqxl to Work & Money (25 answers total)
 
Just talk to a lawyer and get your questions answered. By the time you wait for us to provide our decidedly non-expert opinions you probably could have already called a local real estate attorney and had a 5 minute chat about your situation.
posted by COD at 12:18 PM on June 4, 2013 [6 favorites]


New York has some pretty serious real estate laws, and they be thorny.

You're going to want to talk to an attorney.

As an aside, list it as 2 bedrooms + Den.
posted by Ruthless Bunny at 12:31 PM on June 4, 2013 [3 favorites]


Definitely talk to a lawyer, but perhaps this NYC code may give you hope:

- Size requirements: Generally, a bedroom must have minimum dimensions of 8 feet x 8 feet x 8 feet. A bedroom must also have a minimum floor space of 80 square feet, and must be six feet wide at its narrowest part. However, if the apartment contains three or more bedrooms, half of the bedrooms may have minimum dimensions of 7 feet x 7 feet x 7 feet. (Source: NYC Administrative Code § 27-2004, -2076, -2058; MDL § 1-4-18)
posted by FreezBoy at 12:54 PM on June 4, 2013 [3 favorites]


It's probable that you could sue somebody. It's possible that you'd win, maybe even enough to matter, but at hte same time, it's probably not very much money. Think carefully about the real difference in value between a house with (1500) square feet and N bedrooms and a house with the same square footage, the same floor plan, and the N-1 bedroom listing. As you say, the actual value of the rooms in the house hasn't changed from a homeowner's perspective, so you didn't overpay just because it was N BR, and a prospective buyer probably wouldn't get a crazy bargain if it's listed as N-1. The main place you would have lost money is in taxes on a slightly inflated assessment value.

When I bought my house, it was listed as a 3 bedroom, and the description included "4 rooms upstairs currently used as 3 bedrooms and an office." If you look it up in the county assessor's office, it's a 2-bedroom house. If we had wanted to throw a fit, we would have; however, the house met our needs and was priced better than many that didn't, so no fits were thrown.

I honestly couldn't tell you which of the 4 rooms are technically bedrooms; I admit I'm curious, but not enough to start studying code (circular floor-plan, 2 rooms have insufficient exit to public spaces, I think is the problem). I suspect that our recent renovation which moved a doorway might have magically converted one room into a bedroom, but (a) I'm not sure, (b) we didn't pull permits, so convincing the city of this might cause non-permit fines, (c) "adding" the bedroom would mean higher taxes, (d) the probable benefit to the sales price would be low.

I realize my situation isn't directly parallel/applicable, because we had the benefit of paying 2BR taxes in our effectively-3BR house, and you've got the pain of paying 3-BR taxes in your effectively 2-BR house, so you've got a lot more incentive to care about this.
posted by aimedwander at 12:55 PM on June 4, 2013


Personally, it seems really odd to me that your sellers agent is refusing to list the house as having the number of bedrooms that the county assessor's office says it has. Are they advocating getting the assessment changed immediately? Just having a real-estate listing as N-1 BR doesn't fix anything, the problem's still there. I would try to lobby the real estate agent into listing as N bedrooms with disclosure that it's N on paper, N-1 in reality, and the suggestion that the new owner do something about it to get the taxes changed.
posted by aimedwander at 12:56 PM on June 4, 2013


Show your agent FreezBoy's comment. Or get a better informed agent.
posted by Cranberry at 1:06 PM on June 4, 2013


Can you try talking to a different agent?
posted by chickenmagazine at 1:08 PM on June 4, 2013


Ugh. I would switch agents or ask for an evaluation by the agent's supervisor. If you've already signed a contract, switching may be tricky. We ran into a problem with our house and square footage and it was really the first sign that we needed a super-experienced, flexible agent. If you want to figure this out, your only real option is a real estate attorney.
posted by JuliaKM at 1:15 PM on June 4, 2013


Definitely talk to a lawyer, but perhaps this NYC code may give you hope:

Do we know that the house is in New York City?

Please do talk to a real estate lawyer. You should get an answer quickly and at little cost, if any.
posted by payoto at 1:18 PM on June 4, 2013


Also check with the agent's supervising broker.
posted by St. Alia of the Bunnies at 1:49 PM on June 4, 2013


* I followed COD's advice and called a real estate lawyer. He said that even if there was negligence, the statute of limitations is three years, so it's too late. But he also said that I could list the house in good faith as three bedrooms because it was represented to me and assessed as such.

* The house is not in NYC, unfortunately (Tompkins county, NY, to be specific).

* I am talking to other agents; my talk with the agent today was a first meeting and nothing has been signed yet.
posted by qxntpqbbbqxl at 2:02 PM on June 4, 2013


Do I have any recourse?

IAAL. All the usual disclaimers apply.

To have recourse, you have to have damages. What are you potential damages here? Would you not have bought the house for the price you did if you knew it was two bedrooms instead of three? I am not confident that resale value would be an issue at all. How could what you were told six years ago affect the current resale value? It is a two-bedroom house; a buyer is not going to care about what you were told six years ago. It will not affect their offer to you.

On refresh, I see that the statute of limitations is as I had feared. The point I was going to make is that in such cases, the statute generally begins to run from when you learn of the misrepresentation or when you reasonably could have discovered it. I think you reasonably could have discovered the size of this false bedroom in the intervening years.

he also said that I could list the house in good faith as three bedrooms because it was represented to me and assessed as such.

He's the lawyer licensed in your jurisdiction so I am reluctant to gainsay him, but this strikes me as bad advice to recommend that you perpetuate the misrepresentation that you complain of. Maybe there is a way this is lawful and in "good faith" under the applicable law but I find it hard to imagine. I recommend a second opinion.

(I am actually handling a case very similar to this one except that the bone of contention is whether the house was connected the city sewer or to a septic tank system)
posted by Tanizaki at 2:11 PM on June 4, 2013 [1 favorite]


Maybe there is a way this is lawful and in "good faith" under the applicable law but I find it hard to imagine. I recommend a second opinion.

I'll certainly get a second opinion, in writing, before I act on it. Thanks. My impression from the lawyer was that the state definition of a bedroom is trumped by the assessor's records, so calling it a bedroom may not actually be the misrepresentation I thought it was

What are you potential damages here?

House value is partly assessed by comparing it with similar nearby properties that have sold recently. Dropping it from 3 to 2 bedrooms--even just on paper--puts it into a different stratum for comparison. This kind of assessment will be the basis of my asking price and of the offers I receive.
posted by qxntpqbbbqxl at 2:25 PM on June 4, 2013


What about saying: 3BR per Assessor's office, but 2BR + den per NY State?
posted by goethean at 2:30 PM on June 4, 2013


A Junior 3?
posted by thebazilist at 3:31 PM on June 4, 2013


Dropping it from 3 to 2 bedrooms--even just on paper--puts it into a different stratum for comparison. This kind of assessment will be the basis of my asking price and of the offers I receive.

For this theory to work, you would have to be able to say, "I could have advertised this house as a three-bedroom, but because of what I was told six years ago, I have to advertise as a two-bedroom." That theory does not work because nothing that was said six years ago can change what the house actually is. This is why I think you do not have a claim against anyone even if there were no statute of limitations bar. Hopefully, you will be legally entitled to advertise it as a three-bedroom.

In any event, I think you are in good shape to get a written second opinion before proceeding. Obviously, the advice of whatever lawyer you hire is going to trump anything we have to say here. Best of luck to you.
posted by Tanizaki at 3:56 PM on June 4, 2013


Aside from legal recourse, is there some renovation recourse that would involve moving a wall and creating a legal third bedroom? You could price the construction cost against the potential listing profit.
posted by grog at 4:13 PM on June 4, 2013


Two other ways to maybe list it:
I've seen lots of places with something like "2/3 Bedrooms";
Perhaps "2 Bedrooms, 1 Home Office".
posted by easily confused at 5:03 PM on June 4, 2013


I've seen "one possible bedroom conversion" used as a euphemism for "not legally a bedroom but we know you'll use it as one" before.
posted by miyabo at 5:37 PM on June 4, 2013


Is it at all possible that the codes governing minimum square footage apply to new construction or renovations only? In other words, perhaps your house was built before that requirement was written into the law, and thus your house is grandfathered in?

That would explain the discrepancy with the assessor's records, and why it was previously listed as 3br with no problem.
posted by trivia genius at 6:50 PM on June 4, 2013


I have to agree that the lawyer's advice wasn't good. If nobody ever told you that the one room wasn't in code and you sold it as a 3br, you'd probably be fine. But you DO know it's not code, and that makes what you'd be doing a misrepresentation.

Besides a lawyer, you might want to enlist a licensed architect. They may know the law better than a lawyer. And be able to offer the easiest ways to remedy the situation. (For example, I think some places require that in order for a room to be called a bedroom, it must have a closet. So it's possible some closet reconfiguration would get you in line with the law.)

(And that NYC law is ridiculous! "The room must be at a minimum of 8x8, or 64 sq feet. Except it must really be 80 sq feet. And it can't be less than 6 ft wide. Which is less than the 8 feet we told you a minute ago. ARGH!)
posted by gjc at 6:51 PM on June 4, 2013


The NYC law makes sense if you consider a non rectangular room. Consider a simple L. An L with an 8x8 square joined to a 3x6 rectangle along the 6' side meets all three requirements. But if the rectangle was 5x4 it wouldn't because the additional space to make the 80 square feet isn't 6' wide. Also prevents people from trying to include the hallway leading to a bedroom as part of the square footage of the bedroom. This sort of thing is common in code documents; it is to allow flexibility.
posted by Mitheral at 7:57 PM on June 4, 2013 [1 favorite]


Sell it as a two bedroom, otherwise you might be the one getting sued by the new buyer.
posted by blue_beetle at 5:43 AM on June 5, 2013


"For this theory to work, you would have to be able to say, "I could have advertised this house as a three-bedroom, but because of what I was told six years ago, I have to advertise as a two-bedroom." That theory does not work because nothing that was said six years ago can change what the house actually is. This is why I think you do not have a claim against anyone even if there were no statute of limitations bar. Hopefully, you will be legally entitled to advertise it as a three-bedroom."

Wouldn't the claim — though this is obvious moot, given the statute of limitations — be that because of what he was told six years ago, he paid more for the house when he bought it than he would have otherwise?
posted by klangklangston at 4:42 PM on June 5, 2013


My house has 4, but one technically can't be used as a bedroom by code because of the height of the window above the floor. Emergency exit route or something.

It was listed as a 4 bedroom. My inspector at the time of purchase pointed out that it wasn't "really" a bedroom, just for my information.

When I sell the house (which I don't intend to do in the foreseeable future,) I'm guessing I'll list it as a 4 bedroom as well. I figure the mere title of the listing "4 bedroom in [city]" does not legally constitute a guarantee by me of fitness for purpose, or whatever the lingo is. I'll probably have to disclose the code violation in the paperwork, but I don't think the title of the ad counts as that. I mean, it's a cliche joke, a table of what the listing says/what it really means.

So, probably what you want to look into is - was this even known by the previous occupants, and was it disclosed somewhere in the real estate paperwork? If yes/no respectively, how does the statute of limitations affect that vs. when you discovered it? And is the title of your ad requred legally to be 100% accurate, if you otherwise disclose what you're required to in the way you're required to do it?
posted by ctmf at 4:51 PM on June 6, 2013


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