Massachusetts Bedroom Misrepresentation With Septic Systems

by Bill Gassett on April 30, 2010 · 42 comments

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Massachusetts Bedroom Misrepresentation With Septic Systems

Massachusetts bedroom misrepresentation

One of the things that Massachusetts home owners who are serviced by a private septic system need to be keenly aware of when selling their home is to make sure they do not misrepresent the bedroom count. When a home is serviced by a septic system in Massachusetts the advertised bedroom count must meet the actual septic system design capacity.

This is a critical piece of information for sellers to understand because there are quite a few Realtors that have no idea that this law even exists.

There have been quite a few cases where Massachusetts Realtors have put homes on the market where the advertised bedroom count did not match the septic systems capacity. For example, homes have been listed in the Multiple Listing Service (MLS) where the bedroom count was shown as four when in fact later on the buyer discovers the septic system was only rated for three bedrooms.

This of course creates a situation where both the seller and Realtor can be sued by the buyer. Not a pleasant situation and something that could easily be avoided just by knowing how a simple law like this works in Real Estate.

All septic systems are rated according their bedroom capacity. When someone says the septic system is “rated” for four bedrooms it means that the system will handle the waste generated by four bedrooms. I have seen many people become confused about this topic and think that bathroom counts have something to do with how septic systems get rated.

The bathroom count has nothing to do with it at all!  When you think about it this makes perfect sense. The amount of people living in a home  determines how much a septic system gets taxed, not how many bathrooms. Six people living in a home would obviously generate more waste than two people.

Where sellers and Realtors get into to trouble is when there are rooms in a home that are counted and marketed as bedrooms when in fact they are not. As an example, you could have a home that has three bedrooms on the 2nd floor and another room on the 1st floor that is called a “bedroom”.  This room has a door, a closet and a window large enough for a person to escape through…all requirements of a bedroom.

Ignorant Massachusetts Realtor Misrepresentation

The problem, however, is that if this home has a septic system that is rated for only three bedrooms, it is not a four bedroom home and should not be marketed as such.

There are certainly differences in market value between three and four bedroom homes regardless of the overall size of the house. If a buyer relies on incorrect information when deciding what to pay for a home, it is easy to see why they would have a strong case in court.

Another common situation that can occur is when a seller adds an addition to their home. If the addition happens to be what you are calling a bedroom but there has been no corresponding “upgrade” to the septic system, you can not advertise it as such.

Whenever there is any doubt about the bedroom count, a Realtor should be verifying the records at the local town hall. Most board of health agencies should have this information on record either via a septic system design or “septic as built”.

The other way a septic systems capacity can be verified is when the Title V is performed. In Massachusetts whenever a home is transferred to someone other than an immediate family member a Title V test must be completed. The septic company that completes the Title V will issue a report which will include information on the design capacity of the system.

I know 1st hand based on things I see on a daily basis in the MLS, like lousy pictures and poor or no marketing write ups that sellers often times do not check up on what their Realtor is doing for them. In the court of law ignorance is not an excuse. If you are selling a Massachusetts home you should always ask your Real Estate agent for a print out of what has been published so you can check it for accuracy!

Want to know more about Title V septic systems and selling a Massachusetts home? View my in depth article about Massachusetts Title V and home selling by clicking the link.

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About the author: The above Real Estate information on Massachusetts bedroom counts with septic systems was provided by Bill Gassett, a Nationally recognized leader in his field. Bill can be reached via email at billgassett@remaxexec.com or by phone at 508-435-5356. Bill has helped people move in and out of many Metrowest towns for the last 24+ Years.

Thinking of selling your home? I have a passion for Real Estate and love to share my marketing expertise!

I service the following towns in Metrowest MA: Hopkinton, Milford, Southboro, Westboro, Ashland, Holliston, Upton, Mendon, Hopedale, Medway, Franklin, Framingham, Grafton, Northbridge, Shrewsbury, Northboro, Bellingham, Uxbridge, and Douglas.

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{ 42 comments… read them below or add one }

Andrea Swiedler April 30, 2010 at 12:17 pm

Bill, this is so true, I see this over and over again here in CT. Where I work and live we have mostly septic systems. I actually have seen the reverse, a home that had 4 physical bedrooms, possible 5th as it met all expectations of privacy, but was really a “bonus room”. House had a 5 bedroom septic! I advertised it as such. (4/5 br home with the dimensions of the actual 4 bedrooms)
Where I am the only rule for a bedroom is an expectation of privacy. At least for those above grade. Getting into the basement is a whole ‘nuther can of worms.

Bill Gassett April 30, 2010 at 1:22 pm

Andrea you would not believe how many times I see Realtors incorrectly listing homes where the septic capacity and bedroom count do not match. If I am not mistaken it is one of the biggest claims with errors and omissions insurance. You are right about basement space. I see agents that call lower level rooms a bedroom and there is no window? Obviously not a bedroom!

Ed Daniels - Metrowest Boston Real Estate April 30, 2010 at 2:00 pm

When doing an addition for my home, Holliston, MA also determined the required size of the septic system with one additional criteria: take the total #of rooms and divide by 2. I found this out late but luckily was combining “2 rooms into 1″ to make the numbers work.

Bill Gassett April 30, 2010 at 2:55 pm

Ed that is not just a Holliston criteria. It is actually part of the Title V regulations I believe. I know Hopkinton does the same thing as well. It seems that some towns really follow the regulations to the letter of the law and others don’t.

Penny Hull April 30, 2010 at 4:07 pm

Bill – excellent topic and very well written. These same questions come up often in NC, where there are many, many septic systems. Depending on the area, it’s more common for a home to have a 3 bedroom permit than a 4 bedroom. Like you said, the septic capabilities are calculated under the assumption that each bedroom contains two people, thus a 3 bedroom septic is designed for 6 residents. You may have more or fewer residents, but that doesn’t change the legal requirements of the system.

Joanne January 17, 2011 at 11:34 pm

Hello – I found your site and it’s very informative – thanks for sharing all your knowledge with us.

I have a question that’s on the flip side of this topic. You’re focused on the legal aspect of the seller and Realtor and how they represent a house – a house with a septic rated for 4 bedroom needs to represented as having 4 bedrooms regardless of how many other rooms may fit the description of a “bedroom”

Now on the flip side – what if a house a buyer is looking at, is in this situation. The house has clearly been renovated – the septic is rated for 4 bedrooms – however the house has a 5th bedroom, living room and kitchen in a basement apartment. Now the Realtor is marketing it as a 4 bedroom and says that all permits are legal and everything is on the up and up… How can this be? Can the house be legal? If there clearly is a 5th bedroom in the apartment. and the septic is clearly rated for 4 bedrooms – it seems that the renovation is not legal… either the 5th bedroom and possibly the whole apartment. may need to be ripped out OR the septic may need to be upgraded to a 5 bedroom.

I’m mixed up – since this house we are looking at has renovations and the Realtor says it’s all legal… Is she lying? is the seller lying? it just doesn’t add up – and I’m scared that the town could come at a later date and tell us that things are in violation and they need to be cured or ripped down to the original condition.

I hope you will see this question soon and have some input as to what may be happening here.

Bill Gassett January 18, 2011 at 2:00 am

Hi Joanne – Thanks for your compliments on my Real Estate blog! As I mention in the article you can not call any room in a home a bedroom unless there is matching septic system capacity. So if a home has a 4 bedroom septic design and there is an addition put on the home you can not call any part of the addition a bedroom unless there is a corresponding upgrade to the septic system.

In regards to your question about the apartment you want to make certain that permits were pulled. You are correct in your assumption that the town could ask you to either get it permitted or in fact ask you to make major changes.

Deyano February 5, 2011 at 1:33 am

Great topic Bill!

Here’s my question in regards to additional finished space/renovations. Say you have a system rated for 4 bedrooms but a 5th ‘room’ is part of a renovation design. Even if it is not a legal bedroom, would most towns even allow you to permit and renovate?

Or- would they allow it but not legally call it a bedroom? I ran into this issue with a local inspector and I was told the town would not allow the renovation to be done at all because of the septic capacity. I realize there are probably a lot of ’5th bedrooms’ already out there but if a town would restrict a room from being added on under the pretense that it would be a bedroom and conflict with code- that seems to be a gray interpretation of the law.

I checked with an architect and he chuckled and said that there are essentially 1001 ways to get around that (legally).

I’m curious what your take is on it? Just a cranky inspector?

Bill Gassett February 5, 2011 at 1:23 pm

The town should not stop you from renovating a home. What I have seen to get around this issue is the town putting on a “deed restriction” that essentially says that the home can only be sold as a 4 bedroom unless the septic system capacity is raised to meet a 5th bedroom. There are some towns that are very lax on all the title v regulations and others that very strict and follow it to the letter of the law.

Deyano February 5, 2011 at 2:13 pm

So…..they would allow the renovation to be done legally but the home would only be considered a 4 bedroom? Would it be considered a ‘bonus room’ ? If you are adding sq. footage they must tax it so I’m curious if they would just add to the room count but not increase the bedroom count….

In regards to adding a full-bath. The home could be unofficially a 5 bed/3 bath but only be a 4 bed/3 bath legally?

If the home were listed as having a 5th bedroom/bonus room in the comments how do you perceive it would be received for resale?

Thanks again for the great topic!

Bill Gassett February 5, 2011 at 5:21 pm

Yes the home could only be considered a 4 bedroom under title v regulations is there is a 4 bedroom septic design. The room could be called anything other than a bedroom. You can not list a property with bedroom counts for more than the septic system capacity. For example if there is 4 bedroom septic system you can not list a home as a five bedroom no matter how many rooms are added or what they are used for. This is where many of the lawsuits on bedroom misrepresentation take place.

Deyano February 5, 2011 at 5:27 pm

Okay- thanks Bill!

How would you as a realtor perceive the value of a home with a ‘bonus’ room like this? Maybe compared to a regular 4 bedroom?

So a 4 bed vs. a 4 bed with bonus room?

Although lenders might not appraise it the same as a 5 bedroom home, buyers would still be left with a good impression…..

Bill Gassett February 5, 2011 at 5:33 pm

A bonus room is typically received well. Most homes are 4 bedrooms anyways regardless of size.

Amy October 11, 2011 at 3:48 pm

This is such great information! I recently had an accepted offer on a home that was listed as a 3 bedroom that could “easily accommodate 10-12 people” . The listing broker told me that the septic had been inspected and passed Title V, no worries. I didn’t notice the disclosure which said, Title V for two bedrooms. Honestly, having never dealt with a septic system before, I wasn’t sure what that meant. I assumed if a house is listed on MLS as 3 bedrooms, it is legally a 3 bedroom house. During the home inspection the subject came up and the realtor tried to down play the situation saying they current owners had used it as a 3, even 4 bedroom, house for years with no issues. Once we realized the situation, we asked if the sellers would upgrade the septic to make the house a legal 3 bedroom and they declined. We walked away from the deal, but we are out $400 for the home inspection. The listing broker insists the disclosure absolves her of all responsibility. I feel that it is misrepresentation to list a house as a 3 bedroom and expect the seller to find the truth in the fine print. I’d love hear your opinion on this.

Bill Gassett October 11, 2011 at 3:52 pm

Amy the fact of the matter is that if a septic system is only “rated” for 2 bedrooms you can not list it as a 3 bedroom home. This is misrepresentation and one of the top things that Realtors get sued on!

Bill December 23, 2011 at 2:13 pm

Such a interesting read. We have looked at a short sale that we really like for many reasons, but are reluctant to go forward for two reasons: 1) it is a short sale and 2) the listing advertises it as a 5 bedroom, promoting the in-law potential, but puts in the disclosure that the septic is only deeded for 4 bedrooms. When asked, the broker working the open house just shrugged. My broker had listed the house before and clearly tells me this is a 4 bedroom and will never be able to go up in size due to the lot. We are sad as we really do like the house, but it seems this would be a big mess all around. I wonder how the realtors can get away with this, especially working on a short sale that the bank will have to approve.

Bill Gassett December 23, 2011 at 4:37 pm

Bill this is a clear disclosure issue. The Realtor obviously does not know the law! You can not advertise a home with a 4 bedroom septic system as having five bedrooms. Unless of course you don’t mind getting sued:) The fact it is a short sale is meaningless. The only thing the lender is doing is approving or disapproving a contract given to them. The lender does not own the home or represent any facts about the property.

Mke April 30, 2012 at 2:03 am

Hi Bill, I found this discussion very informative and wondered what the average cost is if the septic system needed to accommodate 4 bedrooms vs. 3 bedrooms and needed to be re-rated and re-constructed to meet an addition?

Thanks!

Bill Gassett April 30, 2012 at 11:10 am

Thanks Mike. I am not sure I can give you an average cost though. There is a huge variation in septic system costs from one lot to the next. The other factor would be if there is a “reserve” area that has already been planned for in the septic design or not. A reserve area is next to the original system that allows you to add additional leaching trenches without having to go through perc and deep hole testing. Essentially with a reserve you don’t have to design a hole new system.

Marcia Casacca July 13, 2012 at 11:38 am

Hi Bill,

I have a home in Winchendon. It has a 3-bedroom septic but it has a deed restriction for 2-bedrooms. Some kind of deal the town did with the builder that so many homes in the development had to be 2 bedrooms and so many 3 bedrooms. Can I advertise this as a 3-bedroom with a disclosure of the deed restriction?

Bill Gassett July 13, 2012 at 11:55 am

Marcia if you explain in detail the septic system circumstances and bedroom count very clearly like you have done here you should be okay.

Dana October 24, 2012 at 4:41 pm

Hi Bill,
Who is responsible for completing and filing the deed restriction for Title V bedroom limits? Is it the homeowner or the BOH?

Bill Gassett October 24, 2012 at 4:56 pm

Hi Dana – the home owner is responsible for recording the deed restriction.

Dana October 25, 2012 at 3:15 pm

Thanks,
Is there a website that I can download the form for a MA deed restriction? And are they straight forward as to what information needed?

Thanks

Bill Gassett October 25, 2012 at 4:55 pm

Dana you are going to need to get the deed restriction from the town you are located in.

Melissa Marro November 4, 2012 at 2:44 am

Wow. This is fascinating. I had no idea of this (of course I’m not in Mass). Here in FL we see Realtors advertising bonus rooms or offices as bedrooms all the time. Personally this makes me crazy because buyers end up feeling they were wasting their time, as they really wanted a 4 bdrm home, not a 3 bdrm with a bonus room. This adds a whole new dynamic to that problem, however.

Bill Gassett November 4, 2012 at 2:36 pm

Melissa septic system misrepresentation is a big issue in our area. This is where a well educated buyer’s agent can come in handy when buying a home.

Chris Murphy January 28, 2013 at 8:27 pm

Please help! I am looking into buying a foreclosed house from Fannie Mae using a 203k . I found out the listing for MLS has the place listed at 2br/2ba. After checking records and permits i found the Health Department has the property listed as a 1 BR perk rate. The County’s Tax assessment has the property listed as a 3br / 2ba.

My questions is this, Since the HD has listed it as a 1br perk, does fannie mae have to sell it as a 1 br/1ba? or is it legal and right to advertise as a 2br/2ba.

Please let me know, Thanks for the help.! I also live in virginia if that helps or matter.s

Bill Gassett January 28, 2013 at 8:36 pm

Chris does the property have a septic system? If so there should be a capacity for the system. For example if the home is rated as a three bedroom you can market it as such. You would not be able to market it as a four bedroom in this circumstance. I should also mention that Virginia laws may be different than Massachusetts.

mary April 17, 2013 at 2:10 am

This is so helpful, thank you! We are considering buying a house that has three existing bedrooms but a two bedroom septic. We would want to renovate. Would we be required to remove one of the existing bedrooms in the renovation? Thanks.
Mary

Bill Gassett April 17, 2013 at 11:40 am

Hi Mary – you would not be required to remove a bedroom, however, when you go to sell the property you would not be able to market it as a 3 bedroom home unless you upgraded the septic system from a two to three bedroom design.

Mary August 13, 2013 at 7:50 pm

Hi Bill,

We are trying to sell a house misrepresented to us at sale in 2002 as a 4 bedroom/4 bedroom septic. Upon completing Title V we came to learn that we are a 4 bedroom/3 bedroom septic. In order to sell must we, the present homeowners, file the deed restriction or can we make that a contingency of the sale to the prospective buyer? No one we have retained for assistance can answer this???

Many thanks,
Mary

Bill Gassett August 13, 2013 at 8:06 pm

Hi Mary – there are only a few towns that I know of who make you file the deed restriction. More importantly is representing your home properly to the next buyer so you do not get sued.

Cristina August 15, 2013 at 5:37 am

Hi

I have the opposite problem. I bought a house advertised correctly (3 bedroom with office). However, my town upped the assessment and hence my taxes to a 4 bedroom home. I called and explained I had a 3 bed septic and should be paying taxes as such. They said no, the office had a closet and window and was therefore, a bedroom. Is this legal!? I have to pay taxes on a four bedroom home, but I’ll never be able to sell it as a four bedroom home? Seems wrong to me!

Bill Gassett August 15, 2013 at 11:52 am

It is wrong Cristina. You need to bring the copy of the law to the assessor and point out to them it doesn’t matter if there is a room with a window and a closet. A dining room could have a window and a closet too – that doesn’t make it a bedroom.

joanna May 28, 2014 at 8:19 pm

‘ The amount of people living in a home determines how much a septic system gets taxed, not how many bathrooms. Six people living in a home would obviously generate more waste than two people.’

Exactly, whence water usage (total gallons per person) being more important then bedroom count, no? Otherwise, why would Title V reports require 2 years of water usage history? Isn’t having one person per bedroom more common a scenario then having two per bedroom? Counting bedrooms seems as unrealistic to determining true septic capacity as counting bathrooms is.

What is the law that you’re referring to that requires sellers to list bedroom vs water usage (or total capacity) when listing a place for sale? My apologies if I missed it in the post.

Thanks!

Bill Gassett May 28, 2014 at 11:50 pm

Yes the reason why bedroom count is important is for exactly that reason. The more bedrooms you have the greater chance of having more people living in the home.The number of baths does not tax the system more, the number of people does. The law is that you can not list the number of bedrooms in the house for anymore than the septic capacity. In other words there may be 4 actual bedrooms in a home but if the septic system only has the capacity of a 3 bedroom design you can only market the house as a 3 bedroom.

joanna May 29, 2014 at 6:24 pm

Hi Bill,

Thank you for your response. Title V reports also show what the max resident capacity of your septic design is, along with max gallons per day that it should handle, which are more accurate measurements then bedroom count (as one person is just as likely to reside in a bedroom vs 2). Septic inspections focus on water usage and go so far as to request 2-year water usage history for a reason, it generates a more accurate assessment of how well its working.

For example, if a septic is rated for ’8 people’, and there is only 1 per bedroom, then assuming 2 people per bedroom would be a faulty assumption. Therefore, bedroom count is just as arbitrary as bathroom count would be in determining capacity, where max resident count and gpd provides a more exact assessment, correct?

Can you let me know what law you’re looking at specifically? I would be surprised if it focuses on bedrooms vs gpd and max resident count.

Thanks

Bill Gassett May 29, 2014 at 11:20 pm

Joanna I am really not sure what you are getting at? As far as real estate goes if a septic system is rated for 3 bedrooms for example, yet there are 4 actual bedrooms in the home, a real estate agent can not legally advertise the home as having 4 bedrooms. The law states that you can only call the amount of bedrooms in a real estate listing for what the septic system is rated for.

joanna May 31, 2014 at 2:38 am

Hi Bill,

Some townships rate septic capacity by water usage, while others ‘guesstimate’ the capacity by bedroom count. Bedroom count is not the only component of a septic rating. It would be helpful for everyone if you could cite the specific law that you are referencing.

On Title V, the capacity rating ALSO includes (A) max resident capacity (e.g. max amount of people the septic can sustain), and (B) gallons per person, gpd, which are both more accurate representations of the septic’s actual capacity, NOT merely bedroom count (bedrooms can house 1, 2, or more people, afterall).

Title V inspections request a 2-year history of water usage for a reason. Garbage disposals effect septic as well, which a bedroom count would not account for. So if your septic design is rated for a max capacity of 8 people, and you have 5 people living in the house across 5 bedrooms (but the house originally had 4 bedrooms), you are actually UNDER utilizing your septic tank. I am trying to encourage people to become more knowledgeable, vs being fearful of something that maybe not even be an issue.

Does that make more sense?

Thank you

Bill Gassett May 31, 2014 at 12:14 pm

Joanna all the things you are mentioning are accurate however the point of the article is not how you get to what an engineer would rate a septic systems capacity. The point here is not to misrepresent a property by not knowing that you can’t so there are more bedrooms that what the system is rated for.

joanna June 6, 2014 at 6:30 am

Hi Bill,

Can you please site the law that you’re specifically referring to?

Thank you.

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