A recent Provincial Court decision highlights the importance of careful measuring and area calculation of a single-family home.
In this case, the buyer sued the sellers and the sellers’ agent, claiming that the licensee fraudulently or negligently misrepresented the square footage of a dwelling on the property when she listed it for sale on the Multiple Listing Service (MLS). The dwelling was approximately 200 square feet smaller than had been advertised.
The Court dismissed the buyer’s claim for fraudulent misrepresentation, finding the evidence didn’t show that the licensee was deliberately untruthful or didn’t care whether the description of square footage in the MLS listing was truthful or not. However, the Court did find the licensee was negligent because she had made an error in calculating the total square footage from the external measurements she’d made.
A seller’s agent has a duty of care toward potential purchasers to be careful about representations made regarding the property for sale, such as its size. In some circumstances, a disclaimer can serve as a clear warning that the licensee is not accepting a duty of care with respect to the information provided. In this case, the Court found the disclaimer at the bottom of the MLS listing (“The enclosed information while deemed to be correct is not guaranteed.”) was, at best, confusing, and not sufficient to vitiate a duty of care.
Despite these findings, the claim against the licensee and the sellers was dismissed because the buyer could not prove he had suffered any damages as a consequence of misrepresentation of square footage of the dwelling.
This case serves as a reminder to all licensees to exercise care in making representations about the finished floor area of a dwelling. When acting for a seller:
- Measure every property you list.
- While there may be more than one standard as to how to calculate square footage in BC, be consistent with the practice in your market in the way you measure every property.
- For properties that are difficult to measure, consider engaging a company that specializes in measuring the floor and finished area of properties.
- Check and double-check both your measurements and calculations to ensure accuracy.
- Review your listing to ensure that the information being published on the MLS is accurate (i.e. there are no typos or data input errors).
- If you aren’t using your own measurements, always state the source of the measurements.
- Consider including a clear disclaimer in the public comments section of your listing, indicating that all measurements are to be independently verified by the buyer if important.
If you’re acting for a buyer who has specific requirements for the total square footage of a dwelling or a particular room, recommend your buyer make the offer to purchase subject to independently verifying the measurements.
Even when a lawsuit against you is dismissed, the process can be extremely taxing in terms of stress as well as time away from your business. Taking extra care when listing a property or assisting a buyer may help you avoid being sued or being the subject of a Real Estate Council complaint.