By Robert S. Kutner, Esq.
Partner, Casner & Edwards
Many buyers rely on the number of square feet of living space as a method for comparing homes. Unfortunately, there is little consistency in the way that square footage is measured, which results in too many variables and too many opportunities for error, particularly because no Massachusetts statute or case decision provides an accepted method for calculating “gross living area.”
Should buyers become disappointed with their purchase, they may focus on square footage as a basis for asserting claims against the agents, brokers, and sellers. Real estate agents should only report figures provided by either the local assessor (hard copy or obtained online); set forth in a deed; or prepared by a reliable professional source that is independent of the brokerage office. REALTORS® are warned against making their own calculations of square footage, as several issues highlight the uncertainty of square footage calculations.
Is the full exterior dimension of the foundation of a property to be used, or should the depth of exterior walls be excluded? How should the floor space of interior stairways be treated? Should “gross living area” include all finished attic space as well as each enclosed porch? If an attic, porch, or other finished room lacks heat, should that area be excluded? If all floor area of the attic does not satisfy the minimum required ceiling height due to the slope of the roof, what portion of the floor area should be excluded from living space? According to some, it is not appropriate to include the entire floor area of a finished basement if the finished room is substantially below grade, if it is subject to chronic dampness, or if it does not have windows of sufficient area to satisfy the minimum requirements of the state sanitary code.
An article that appeared in The Boston Globe several years ago discussed the issue of square footage, reporting that the same house was listed as having 2,700 square feet by one REALTOR®, but 3,200 square feet by another. The Globe noted that split-level homes can be particularly problematic, leading some measurers to exclude all space on each level that is below grade. In one case involving a Worcester County property, The Globe reported that different agents’ square footage calculations varied from a low of 1,170 square feet to a high of 1,670 square feet for the same split-level home.
There is little uniformity outside of Massachusetts as well. A widely respected organization known as the American National Standards Institute, or ANSI, published a standard for measuring square footage of a single family house, Z765-2003, approximately a decade ago, but it has gained little acceptance. An alternative guideline has been published in book form and in pdf format entitled, The American Measurement Standard, and identified as AMS C42129. This 60-page book defines eight specific categories and three levels of finish, and also contains definitions of both “finished square footage” and “gross living area.” It differs from the ANSI standard.
Case Law Provides a REALTOR® Defense
If faced with a claim that the “gross living area” was misrepresented by an agent, the best defense is that the agent relied on a calculation from a reputable source. Generally, information provided by the local assessor in its field card or as an online summary of the assessor’s information is deemed reliable. When listing a condominium unit, the master deed or unit deed generally provides square footage information for the unit that may be included in a listing.
Fortunately, case law in Massachusetts now provides a defense for most claims that a real estate agent misrepresented the square footage of a home or the acreage of a property. In a 1995 decision of the Massachusetts Appeals Court, Fernandes v. Rodrigue, I represented a REALTOR® who was sued for misrepresenting the acreage of a single family home. The listing agent had obtained information from the Raynham assessor that the parcel was four acres, but after the sale, the buyers discovered that it was only 2.8 acres. Because the agent had reasonably relied on the assessor and there was no evidence of negligence, the superior court dismissed all claims for misrepresentation and for violation of Chapter 93A. On appeal, the dismissals were upheld by the Appeals Court.
In its ruling, the Appeals Court reasoned that: “One would hardly expect the broker to have a survey made; that would ordinarily be the buyer’s responsibility if a certain minimum area was a matter of importance. Particularly as to good faith statements in a sales contract about land area, the courts have long held the view that a misstatement as to area is not actionable, either for rescission or damages.” Since 1995, several courts have relied on Fernandes and applied the same reasoning to measurements of square footage of homes and buildings. Ravosa v. Zais (Appeals Court 1996) and Luippold v. Zelman (Appeals Court 2004) are unpublished decisions that affirmed dismissal of claims that a broker misrepresented the square footage of a condominium.
Reduce Yyour Risk
To reduce the risk of a claim, the cautious REALTOR® should document the source of square footage information when listing a property for sale. If there is a discrepancy from one year to the next or between sources, it is advisable to bring the discrepancy to the attention of prospective buyers, allowing the buyers to investigate the issue. When representing a buyer, the buyer’s agent has the right to rely on the listing information and does not have an obligation to verify the calculation. If, however, buyer-clients are relying on square footage rather than on viewing a finished structure, it may be advisable to inform them of the potential variations in such calculations and to encourage them to hire a professional to prepare an independent calculation.