Question:
What is the legal definition of a bedroom? I have a listing for a condo in Fairlington Villages that the seller told me had two bedrooms. Upon visiting the condo I did confirm that the owner was using the "second bedroom" as a sleeping area. Since it had a closet and a window I assumed it was a bedroom. On this basis I marketed the property as a two-bedroom condo. The home inspector later informed the buyer that the other bedroom did not meet the local zoning requirements for a legal bedroom.

The buyer did further research and provided me with a copy of the floor plan for the Hermitage Model that identified the other room as a den. The buyer also provided me with a copy of the Arlington County Regulations that indicate the other room could not be considered a bedroom because the window is too high off the ground. Now the first contract has fallen out. Can I remarket the property as a two-bedroom condo or must I correct the listing? Have I already acted unethically by misrepresenting the number of bedrooms in the condo?

Answer:
The legal definition of a bedroom is determined by the appropriate zoning codes of the local municipality. This definition can vary between local jurisdictions, the type of building, and the zoning for the lot. The assumptions that the average person makes about what constitutes a bedroom can differ substantially from the requirements of the zoning codes. For example, many people may assume that a room is not a bedroom if it does not have a window.

The interpretation of these rules can be very difficult for those without a background in the construction industry or related trades. For this reason, matters related to the zoning of property are typically considered outside the scope of a real estate agent's licensed area of expertise. REALTORS® engaged in the practice of residential brokerage are not often aware of how to interpret the myriad of regulations and special exceptions that make up the zoning codes for local jurisdictions. This is typically something reserved for agents engaged in commercial brokerage who often need to know how a building is zoned in order to ensure their client's intended use for the property complies with zoning codes.

In the fact pattern provided above, the REALTOR® could argue that she did not act unethically when the property was initially advertised for sale. The listing agent was reasonably relying on the seller's statement that the property was a two-bedroom condo. REALTORS® are allowed to rely on the representations of their clients.

There are two exceptions to this rule. If the REALTOR® has actual knowledge that the client's information is incorrect or the issue involves an area within the scope of a real estate agent's license area of expertise. The REALTOR®'s¨ defense would be that she did not have actual knowledge about the true status of the bedrooms until the buyer presented her with evidence to refute the seller's statements. A hearing panel may accept this defense if they agree the legal definition of a bedroom is outside the scope of the agent's license. However, once the agent receives valid information that calls into question the validity of the seller's representation, she would no longer be allowed to continue claiming the property is a two-bedroom condo. We recently had a complaint where an agent continued to market a property as a two-bedroom condo after being advised that the Hermitage model in Fairlington Villages was only a one-bedroom condo with a den. The agent made three arguments for why she should be allowed to continue marketing the property as a two-bedroom unit even after learning it really was a one-bedroom condo with a den.

The first argument was that the seller used this room as a sleeping area. The agent argued that it was common for owners to use the den as a sleeping area. Since the county failed to enforce the prohibition in the zoning code against using the den as a sleeping area, these regulations should not be considered in an ethics hearing. People often use the rooms in their house in a way that fits their lifestyle rather than in compliance with obscure zoning regulations.

The second argument was that the seller's interests would be harmed if the listing agent were forced to advertise the property as a one-bedroom condo when a substantial number of other listings for the Hermitage model in Fairlington Villages were listed as two-bedroom units. The agent provided documentation that indicated that 81% of the listings in Fairlington Villages since 1995 have identified the Hermitage and Monticello models as two-bedroom units. The agent correctly pointed out that the seller's property would sell for less than the similar property that was marketed as a two-bedroom unit.

However, this argument was based on a false assumption. An agent cannot misrepresent a property as a two-bedroom condo when she knows this to be false simply because other agents may not have the same level of actual knowledge about the requirements of the Arlington County Zoning Codes. This evidence of a 81% error rate may help prove that the zoning codes are outside the area of expertise of a real estate agent. However, unless it can be shown that all these other agents knew about the zoning code or had received a copy of the original floor plans for the Hermitage and Monticello model, we cannot assume they acted unethically.

The final argument was that the agent would be at a competitive disadvantage with the other agents who compete for listings in Fairlington Villages. This argument is based on the assumption that sellers will continue to incorrectly tell the other competing agents that their Hermitage and Monticello models are two-bedroom units. Since these other agents may not have a copy of the original floor plan or understand the requirements for a bedroom under the zoning code, they could continue to mistakenly represent these properties as two-bedroom units.

Everyone can sympathize with the agent in this situation. It does appear to place her in an unfavorable position. Unless information about this case is disseminated to the general membership, these other agents may never learn that Hermitage and Monticello models in Fairlington Villages are one-bedroom condominiums. While the agent in question could advise the other agents in the development about the actual number of bedrooms in the Hermitage and Monticello models, this would place a burden on the agent. Furthermore, it may require the agent to acknowledge that she was the subject of a complaint.

Normally our established rules of confidentiality would preclude providing enough detail about a complaint to the general membership to rectify this situation. Only the Board of Directors can authorize any disclosure of the information from a hearing that withholds the agent's name and changes certain facts to protect the REALTOR®'s¨ identity. Thankfully, in this case they did authorize the release of enough information to assist members in avoiding this problem in the future.

Information about the models in Fairlington Villages may be found at www.fairlingtonvillages.com.

LOCAL ZONING OFFICES:

City of Alexandria Department of Planning and Zoning
703/838-4666

Arlington County Department of Planning, Housing and Development
703/228-3883

Public Works and Environmental Services for Fairfax County
Building Plan Review Office
703/222-0114

City of Fairfax Community Development and Planning
703/385-7930

City of Falls Church Zoning Division
703/248-5015

Town of Herndon Department of Community Development
703/787-7380

Town of Vienna Planning and Zoning Department
703/255-6341