In June of 2009, in Oklahoma, a lawsuit of a buyer against a seller and the listing agent was allowed to go to the Oklahoma supreme court. At issue, the ability of the buyer to sue the seller and the agent for misrepresentation of square footage.
Here in Salem, Oregon, I have been appalled by some agents adding in unfinished basements into square footage in order to make the house seem larger than it is. Personally, I think that is an easy way to get yourself sued because it is misrepresentation. Fortunately, it is obvious misrepresentation and just makes real estate agents look like schmucks. What is interesting about this situation in Oklahoma, is that the house was listed at 2,890 sq feet but it really ended up being somewhere between 2200-2400 square feet. If you can’t walk into a house and see the difference in a 2200 sq foot house vs a 2800 sq foot house, then I suggest you need glasses, but they didn’t ask me and I digress…The buyers purchased the house and then when they saw the appraisal realized how small the house was and sued.
As a result of this lawsuit, one of the local MLS’s in Oklahoma made the decision recently to pull square footage data off the MLS for public viewing and encouraged agents to avoid quoting square footage. So if you are a buyer in that MLS area and tell an agent, I want at least 2000 sq feet… they have to say “sorry can’t tell you that” or pull data based on that. What that means for buyers is a lot of wasted time seeing homes that are 3 bed/2 bath and 1,000 sq feet, when what you really want is a 3 bed/2bath home with at least 1,500 sq feet.
I see the next step in real estate is to stop quoting the number of bedrooms because someone might sue because a bedroom in an old house doesn’t have a closet. Maybe someone will sue an agent because they quoted 3 bathrooms on the MLS, but it really is not 3 full bathrooms because one only has a shower and not a shower tub combination. Pulling the square footage data off the MLS is such an unfortunate turn of events. I think most buyers find this information essential in determining if they want to see a house. This is truly a step backward for real estate.
I don’t mean to demean the buyers involved in that lawsuit in Oklahoma because they obviously feel deceived and the representation made by the agent and seller sounds dubious. What I do hope is that all buyers of real estate here in the Salem Oregon area realize is that we have a clause in our OREF contracts, lines 316-318 in fact, that explicitly states
“Neither seller nor any Licensee (s) warrant the square footage of any structure of the size of any land being purchased. If the square footage or land size is a material consideration, all structures and land should be measured by Buyer prior to signing or should be made an express contingency in this Agreement.”
Square footage is not an exact science, and there are in fact several ways to measure square footage. I guess what disturbs me most about this lawsuit is that the “defect” was apparent. It’s not like this was hidden mold or a zoning change that the seller knew about but didn’t disclose. The buyers could walk in and physically SEE what they were buying. So dear local buyers…when you walk into a house and it feels “small” just know that it may really be small. If you walk into a house and it feels “large” it may really be large. I just encourage all of you to LOOK at what you are buying. Make your judgments about what you physically see. If you don’t like what you SEE, then you know you aren’t looking at the right house for you.
Melina, we faced a similar situation here last year with a buyer who went ballistic when the home they were purchasing did not measure up to exactly what was on the MLS listing. Even though our contracts say we don’t guarantee the measurements, even though we all use the word approximate when giving measurements, the buyer was determined to renegotiate the entire deal over 100 square feet. It was frustrating for everyone involved and would have resulted in a lost sale for the seller if they had not agreed to do so.
Now, we make sure that we tell all buyers that if the square footage is important to them, they are welcome to measure the house themselves to check the listing agents numbers. The bottom line is that if you love the house, it fits your needs and you are comfortable there, what difference does the exact number of square feet make?
Lisa there was that court case in Texas, which the buyers won, which had to do with square footage as well. To me that is a poorly prepared buyer with a not so great agent. My clients are all aware that sq footage is not exact. How stressful for the seller to have to deal with that, and the ultimate irony for that buyer would be if the square footage ended up being measured differently when they sell…and their buyer gives them grief over it.