By Lisa Vierse May

Is that fourth bedroom really a bedroom? Can a home legally have two kitchens? These are questions that may cross a listing agent’s mind. And not knowing the answers can place you and your clients in legal limbo during a sales transaction.

Fairfax County code officials answered Realtor® questions about these topics during NVAR’s June 14 Public Policy Forum on code compliance. Those officials provided the following guidance for listing residential property in the county.

Bedrooms
Contrary to popular belief, a closet is not what determines whether a room is considered a bedroom. Rather, it is the means of “egress” (or exit) from the room that determines its use. A legal bedroom must have two ways to exit: one that leads to the rest of the home and one that leads directly to the outside.
In most cases, the outside egress will be a window. However, just because a window is present doesn’t mean the room is automatically a bedroom. A bedroom egress window must be at least 5.7 square feet and it can be no more than 44 inches from the room floor, unless there is a permanent step installed. In addition, it is illegal to have locking bars or grates covering an egress window.
A final consideration is that it is not permissible to enter a legal bedroom through another bedroom.
It is important to keep these factors in mind when listing a home featuring below-grade or basement bedrooms. If those rooms do not have the required egress features, they may only be listed as a den, sitting room or other finished square footage, rather than a bedroom.

Second Kitchens
Buyers may view a full in-law suite or a massive “wet bar” as an added selling feature. However, unless those features were constructed with county permits, listing agents might be caught advertising an illegal use.

A legally constructed second kitchen in the county is extremely rare. The Alexandria and Huntington areas do contain a handful of such properties that were constructed prior to existing zoning regulations. Apart from those properties, a legal second kitchen in an in-law suite is only allowed with a permit approved by the Board of Zoning Appeals, subject to several conditions. The suite must serve someone who is older than 55 or is disabled. The residence must be owner-occupied. Finally, the permit must be renewed every five years and does not transfer to a new property owner during a sale. A new owner wouldneed to apply for a new permit to continue the use or remove the facility from the dwelling.

Wet bars present a similar challenge to zoning regulations. The county defines a wet bar as having a mini refrigerator and an 18-inch sink, the installation of which requires a permit. Wet bars with full-size appliances, particularly those with cooking appliances, are likely to violate Fairfax County Code.

When listing a property with a second kitchen or a wet bar, be sure to ask the owners for copies of the building permits and permit application packet from the county. Also be sure that the permits presented match the project that was completed; a common tactic is for homeowners to use permits for a washer and dryer installation to construct kitchen facilities instead.

“Rental Potential”
A final area of caution for Realtors® involves language used in marketing properties. When describing a property with “great rental potential,” or suggesting that extra bedrooms can be rented to help offset the mortgage, you may be encouraging practices that result in residential overcrowding.

A home’s occupancy limit is determined by both the building code and local occupancy regulations. The building code requires that a room for one person be at least 70 square feet in size (i.e., 7 feet by 10 feet). Rooms sleeping more than one person must contain at least 50 square feet for each occupant (100 square feet for two people, 150 square feet for three, and so on).

Once the building code requirements are satisfied, owners must also comply with occupancy regulations. The Fairfax County ordinance (see sidebar) places the following limits on who may occupy a home:
• A family unit, related by blood or marriage
• Two single parents and up to six of their dependent children
• A family unit, plus two unrelated boarders in legal bedrooms
• Four individuals not related by blood or marriage.

Occupancy exceeding these limits is governed by regulations concerning group homes or boarding houses, which are illegal without prior approval and permitting by the county.

Impact on Transactions
These rules are important to keep in mind when listing a property for sale. County officials can review real estate listings and accept complaints from the public about suspected code violations.

Based on those complaints, county officials may conduct an inspection of the dwelling. They will then provide a notice of any violations and require that the home be brought into compliance with local code. In the case of an unpermitted second kitchen or wet bar, they may require complete removal of the appliances, cabinets and any electrical or plumbing connections which serve that use.

Enforcement actions also trigger disclosure requirements for the seller. Code § 55-519 requires sellers to disclose any pending building code or zoning enforcement actions to prospective buyers.

Finally, agents advertising illegal uses could be in violation of the Realtor® Code of Ethics and Standards of Practice relating to representations of the property. Checking the land records of the property is a good practice, but even those records may contain errors. Knowingly advertising an illegal use can land your transaction in trouble with the Code, the county and your clients.

For more information, contact the Fairfax County Code Compliance office for clarification. You can also learn more at the county’s website, http://www.fairfaxcounty.gov/code/.

Sidebar:
A Note on Occupancy
The occupancy standards listed in this article are specific to Fairfax County. While most of the surrounding jurisdictions have adopted similar standards, there may be slight differences on the number of unrelated individuals permitted in the dwelling. See below for links to other local jurisdictions.

Agents must also be aware of rental occupancy caps permitted under the Federal Fair Housing Act. A 1998 enforcement memo reaffirmed the ability of landlords to impose a two-person per bedroom limit on occupancy in rental dwellings. 2013 Realtor®-sponsored legislation strengthened this protection in Virginia. SB 841 (Locke) allows Virginia landlords to set reasonable occupancy limits in keeping with the HUD standard of two persons per bedroom. The two-person cap controls even if the building code or local ordinance provides for additional occupants based on the bedroom’s square footage.

For additional information, please visit:

Virginia SB 841 (2013): http://go.nvar.com/lis2013
HUD Notice: Occupancy Standards: http://go.nvar.com/hudoccupancy
Local Occupancy Regulations
Fairfax County: http://go.nvar.com/ffxlt
City of Alexandria: http://go.nvar.com/alexlt
Arlington County: http://go.nvar.com/arllt
Loudoun County: http://go.nvar.com/loudocc
Prince William County: http://go.nvar.com/pwocc