Did You Overpay Due To A Real Estate Agent’s Misrepresentation?: The Case of the Fake Engineering Report

Posted By on September 1, 2015

When a real estate agent makes a mistake or for some reason provides a buyer with incorrect or misleading information in Florida, they (along with their broker and even the seller) may be held liable for any resulting damages to that buyer under a claim of “negligent misrepresentation.” The situation becomes much more serious if the misrepresentation was intentional; if the agent consciously provides bad info to the buyer, it is more than a human mistake, and the consequences are more severe.

Intentional misconduct forms the basis for a legal claim of “fraudulent misrepresentation” for the injured buyer, who may also have other legal claims as well, such as breach of fiduciary duty, against the real estate professional.

Why intentionally misrepresent details to a buyer?  Usually, the answer is money: manipulating the facts may be an easy, tempting way to close a deal and guarantee a desirable, valuable commission.
Cost chicanery

Claims for Fraudulent Misrepresentation Against Seller and Real Estate Agent

Making a claim for fraudulent misconduct (and breach of fiduciary duty) because of an agent’s misrepresentations can be made against the real estate agent and their brokerage. A claim of fraudulent misrepresentation can also be made against the seller, if the seller was also involved in the fraud.

The keys here are to understand who signed contracts with the buyer, and the seller’s involvement.

Suing the Seller

When a Florida residential real estate buyer signs a contract to purchase a home or condo from a seller, the buyer will be bound by that purchase agreement unless that seller was culpable in the material misrepresentations that were made to the buyer to get him to buy the place by the buyer’s real estate agent. If the seller didn’t know about the fraudulent statements made by the buyer’s agent, then the seller is not going to be held responsible.  Roberts v. Rivera, 458 So. 2d 786 (Fla. Dist. Ct. App. 1984),

Suing the Real Estate Agent

In cases of fraudulent misrepresentation, either or both of the affected seller and buyer may be able to sue the real estate agent.  For example, where a Florida real estate agent advised a seller to sell property to a buyer who happened to be one of the agent’s associate real estate agents for $150,000, and the property was really worth twice that ($300,000), then there could be a claim to be pursued against the agent for both fraudulent misrepresentation and breach of fiduciary duty by that seller. Ordziejeski v. Freudenberg, 946 So. 2d 599, 601 (Fla. Dist. Ct. App. 2006).


The Case of the Florida Muckland and the Fake Engineering Report

In the case of Roberts v. Rivera, 458 So. 2d 786 (Fla. Dist. Ct. App. 1984), Mr. Rivera and his wife wanted to buy some real estate near Orlando for investment reasons, land that was near Walt Disney World. They called the real estate broker’s number displayed on the For Sale sign there on the land, Orange Realty Masters, Inc. Sandra McDonald answered their phone call, identified herself as an expert in finding property, and connected them with Ulay Thompson, a real estate broker. Mr. Rivera explained to McDonald and Thompson that he wanted to buy land to develop into residential homes.

They agreed to work with Mr. Rivera to find suitable property, work on any needed rezoning, and help him sell the lots. They would each get a commission as the lots were resold by Rivera. Rivera was then shown a 22-acre tract owned by Mr. and Mrs. Roberts, which was listed with “residential estates” as its best use.

Mr. Rivera inspected the property three times as a buyer before signing a purchase agreement; he walked through with McDonald initially, and she told him that the lake level was low because of drought, at normal times the nearby Lake Mabel would be higher. A developer and friend of Thompson’s testified that he told Rivera as well that the land had low areas not readily seen, absent drought conditions, and could not be developed because of it.

The Fraudulent Misrepresentation

The buyer asked the two real estate professionals, McDonald and Thompson, to investigate this issue — would low elevation prevent him from utilizing the land fully as it was intended? He understood they would get an engineering report to answer his questions; before he signed, the two professionals told the buyer that an engineer had okay-ed the land as suitable for residential development.

Rivera then bought the land from William Roberts. Buyer Rivera later testified seller Roberts said there were “no problems” with the property, but he had rarely visited the property and didn’t know about soil conditions. After closing, an engineer did soil boring tests and found the property would be extremely difficult to develop for residential homes. Moreover, the county planning department testified that it would hard for the property to meet county standards because so much of the track was “low muckland” and estimated the value of the tract at $47,400.00. The Riveras had paid $98,000.00 for the property.

The reviewing court found that there was no controversy that the Riveras had been harmed: they got much less in real estate than they paid for. However, they offered no evidence that the sellers themselves made any oral or written misrepresentations about the soil conditions, or that the sellers hid known facts about the muckland from the buyers. Here, the evidence was clear that the false statements and material misrepresentations made to the buyers were made by the two real estate professionals. This included their false statements about an engineering report that found the property acceptable before the land was purchased by the buyer.

Victim of Fraudulent Misrepresentation: Florida Real Estate Lawyer Can Help

If you or a loved one think that you have overpaid for Florida real estate and been a victim of misrepresentation by a Florida real estate broker or real estate agent, then you may have a legal claim for damages available to you under Florida law. An experienced Florida real estate attorney like Larry Tolchinsky can negotiate on your behalf, and file a lawsuit if necessary in order for you to get justice.


Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

The Case of the Real Estate Agent’s Negligent Misrepresentation and the Buyer’s Broken Back

Posted By on August 25, 2015

Florida real estate agents and their real estate brokers are professionals who must be licensed by the State of Florida to do business here. Applicants for a real estate agent’s license must study and pass a test to demonstrate their knowledge of the real estate industry. They have to take continuing education classes to keep up their knowledge and industry savvy on an annual basis, too.

Which means that people in the market for residential real estate here in South Florida should be able to trust the real estate agent or broker in a transaction, right? Sure!

And for the most part, things go smoothly here. Most real estate professionals aren’t trying to deceive anyone and they aren’t thinking of ways to commit an intentional act or make a “fraudulent misrepresentation” just to get a deal closed. (Though this does happen.)

However, real estate agents are human and they can make mistakes just like anyone.

Negligent Misrepresentation Happens – Mistakes Are Made by Real Estate Professionals

If a real estate agent or real estate broker in Florida makes a mistake and unintentionally misrepresents a material fact about a property, they may not mean to cause anyone harm. However, if their mistake in fact, their unintentional misrepresentation, does end up being relied upon by a buyer — and that buyer gets hurt because of it, then the real estate professional may be liable for the harm that has resulted.

In Florida, this would be a claim based upon “negligent misrepresentation” against the real estate agent or broker. Florida law places a legal duty of care upon the real estate agent or broker to provide accurate information in their real estate dealings. If they fail to meet this duty of care by unintentionally misrepresenting something, and that failure causes damage or harm to they buyer (or seller) that is owed their legal duty of care, then they are liable for a form of professional negligence.

The real estate agent or broker can be held financially responsible for the damages and harm caused by that failure in their duty of care even if it was a mistake on their part and they meant no harm. In these situations, their professional insurance coverage (called an “errors and omissions policy”) may provide coverage for the harm and damage that the buyer (or seller) is claiming.
Attic ladder opening

The Case of the Buyer Who Fell Through the Attic

One clear example of how negligent misrepresentations by a real estate professional can end up causing someone very real harm happened in the case of Horn v. First Orlando Realty Management Corp.,483 So. 2d 80 (Fla. Dist. Ct. App. 1986).

In this case, Margaret Horn was told by the real estate agent that the attic of her new place would be fine for storage. The real estate agent even went so far as showing Margaret Horn how she could access the attic and how to turn on the lights up there. Not only did she demonstrate this to Ms. Horn once — she showed her how to get up into the attic twice.

So, no surprise here, Margaret Horn moved in and decided to take advantage of that attic space to store some things. She pulled down the fold-away stairs from the ceiling. She climbed up, and she turned on the lights.

However, when Margaret Horn stepped out into the attic space and placed her weight on a flimsy part of the attic floorboards, the surface was not strong enough to hold her weight and she fell through the attic and down into the room below. This was a serious fall: Ms. Horn suffered a broken back in the accident.

When meant that Margaret Horn had a serious personal injury with life-changing consequences — and she had a substantial personal injury claim against the real estate agent and her real estate management company. When Ms. Horn’s claims were not honored by the real estate company and its agent, she sued.

Specifically, Margaret Horn sued for negligent misrepresentation regarding the ability to use the attic space for storage and the safety of doing so and the jury agreed with her. She argued that the real estate agent (and her employer, the real estate management company) had a duty of care under Florida law to Margaret Horn to be clear and correct regarding the attic and its safe accessibility.

There were no allegations that there was any intentional wrongdoing here. Mrs. Horn argued that the agent breached a duty of care to her when she explained that the attic could be used for storage, going so far as to demonstrate how to get up and access the attic for that purpose on two different occasions. When Mrs. Horn fell and was hurt, she argued that the breach of the agent’s duty of care caused her harm under Florida law for which the agent and her real estate management company are financially responsible.

While the trial court judge sided with the real estate defendants, on appeal the reviewing court agreed with the jury and also saw things her way.

“Because the complaint adequately alleged negligent misrepresentation and the evidence well supported the allegations, the trial court judge erred in substituting his judgment for that of the jury,” explained the appellate court which ordered a judgment be entered in favor of Margaret Horn on the grounds of negligent misrepresentation by the real estate agent.

Do You Have a Claim for Negligent Misrepresentation Against a Florida Real Estate Agent?

In Florida, real estate closings happen every day. If you are a buyer or seller that suspects they may have been the victim of a breach of an agent or broker’s legal duty of care to them, and you’ve got damages as a result of that breach, then you may have a claim that may be worth pursuing.

However, there are other legal factors to consider here, too. One of them is the contract that was signed by the real estate broker or the real estate agent — is there language that limits their liability? Are there other defendants that may be liable instead of the agent or in addition to them? And is this a case of mistake (negligent misrepresentation) or one of misconduct (fraudulent misrepresentation)? Having a discussion with an experienced Florida real estate lawyer can help you decide if you have a case, and if so, how best to proceed.


Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.


When Florida Home Buyer Discovers His New Property Floods: A Case of Fraudulent Misrepresentation

Posted By on August 18, 2015

Here in South Florida, flooding is a big problem — something that buyers and investors from other states or other countries may not experience. Not only do we have the threat of hurricanes swooping in with tons of water, there is also the factor that parts of our state are wetlands and marshes: the Everglades cover most of South Florida, for example. Our terrain invites flooding in ways that other  land masses do not; and when there are thunderstorms with heavy rains here in Miami-Dade, Broward, and Palm Beach Counties, there’s always a possibility of flash flooding, too.

Which means, that anyone considering buying a home or condo in South Florida needs to know about the risks and dangers of flooding and how to prepare for those conditions. Flood insurance is one way to prepare for floods, for example. But how can you prepare when you’re not even aware of the problem?

FEMA - 37615 - Community flooded by Tropical Storm Fay in Florida

The Case of the Home Buyer Whose New Property Floods

In the case of Wassall v. Payne, 682 So. 2d 678 (Fla. Dist. Ct. App. 1996), Dorothy Frazier bought real estate from W.H. Payne with Dean Highfield acting as the real estate broker. A day after Mrs. Frazier closed on the deal, Richard Wassall leased the property from her. Under the lease terms, Wassall would pay the monthly payments to Payne for the purchase. Wassall was involved in the negotiations to buy the real estate; in fact, at one point he was the buyer and not Frazier.

During the closing process, Wassall asked about flooding dangers to the property. Both the seller and the broker told him not to worry and the deal was finalized.

Wassall moved forward after closing and started spending money on improvements to the property — until he discovered that the property was at risk for periodic flooding.

So, Mr. Wassall filed a lawsuit together with Mrs. Frazier. Specifically, Wassall and Frazier sued both the seller and the real estate broker for (1) fraudulent misrepresentation, (2) negligent misrepresentation and (3) negligence per se.

The seller and the broker argued first that Wassall couldn’t sue them — he was a tenant!

Upon review, it was held that the “privity” argument could not fly. Meaning, as long as Wassall was a victim of misrepresentation by the seller and the broker, then the fact that Wasall had no contract with them wasn’t going to prevent Wasall from proceeding with his misrepresentation case (he wasn’t suing for breach of contract).

Both the real estate broker and the seller could be held liable for misrepresenting the flooding characteristics of the property and if it could be shown that they did so intentionally, not by an error or omission, then they could be held liable for fraud — fraudulent misrepresentation.

What is Fraudulent Misrepresentation by a Florida Real Estate Broker?

What makes fraudulent misrepresentation different from negligent misrepresentation is the intent of the person who makes the representation. When a real estate professional makes a mistake, for instance if the agent provides the wrong square footage in an MLS listing, then the buyer may have a claim for damages based upon an unintentional error (the agent didn’t intentionally make a fraudulent statement). A mistake can be grounds for a negligence claim – the agent or broker made an error (by not investigating or by not verifying information) when representing the details about the property during the sales negotiations or closing process.

However, fraudulent misrepresentation is a different story.

In these situations, the real estate professional or seller knows the truth about the property and chooses to misrepresent a condition in order to close the deal. Maybe it’s an exaggeration. Maybe it’s an omission. Maybe they think it’s okay not to tell the buyer everything, or maybe they think it’s not that big of a deal so why bother sharing it.

Whatever the motivation behind the seller or the real estate broker (or agent) failing to be forthright, if the buyer is hurt because of their behavior, their knowledge of a circumstance that materially impacts the value of the property that they fail to disclose or intentionally misrepresent can be the basis of a fraudulent misrepresentation claim.

And, damages for fraud are different than damages for negligence: it’s possible that the buyer can receive additional damages against a defendant found guilty of intentional misconduct. Moreover, “errors and omissions” insurance (lots of real estate agents carry this type of insurance) does not cover fraudulent acts; those insurance policies only cover mistakes.

What Are The Elements of a Fraudulent Misrepresentation Claim?

In Florida, a “fraudulent misrepresentation” lawsuit can be filed against a real estate broker (or a real estate agent or seller) if the following elements are present:

(1) there was a false statement concerning a material fact;
(2) the broker or agent’s knowledge that the representation is false;
(3) an intention on the part of that broker that the representation induce the buyer to act on it; and,
(4) consequent injury (damage) by the buyer acting in reliance on the representation.

See – Johnson v. Davis, 480 So.2d 625, 627 (Fla. 1985).

Are You The Victim of a Fraudulent Misrepresentation and Your Home is Flooding?

If you recently purchased Florida real estate and your property was materially damaged by a flood, and a real estate agent intentionally made untrue representations about the flood conditions of the property, then you may want to have someone review your claim for possible wrongdoing.  An experienced Florida real estate attorney can help you explore your options, including filing an insurance claim, and, if necessary, filing a lawsuit for you to get justice.  Most real estate attorneys, like our office, do not charge for an initial consultation.

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

When Your New Home Isn’t What You Expected: Misrepresentation by a Real Estate Agent

Posted By on August 11, 2015

Here in Florida, real estate transactions take place every day. Closings and people moving into new homes are happening all of the time in the Miami Dade – Broward – Palm Beach areas. A lot of these transactions are first time residential home purchases, where new buyers are excited about owning a home or condo.

In most Florida residential real estate transactions, the closings go smoothly and the buyers move into their new home without a glitch. However, that’s not always the case. Unfortunately, there are situations where buyers, once they move in, meet with some unexpected surprises.

When these surprises relate to a material difference in the condition of the property (in terms of what they thought they were buying and the actual condition of the property) it places some buyers in a position of either having to live with things as is, or calling a Florida real estate lawyer to see how they can hold someone responsible for these problems (problems like, leaky roofs, bad plumbing, easements, boundary issues, septic tanks, etc.).

First Question: Why Did the Buyer Think He Was Getting Something Different?

One of the first questions a real estate lawyer will ask: what made the buyer think they were getting something different? All too often, that unhappy buyer will explain that they were told something by the real estate agent or broker (or the information was included on the MLS sheet or on the internet). Which means, someone made a representation that the buyer relied upon which turned out to be untrue.  That misrepresentation can form the basis of a lawsuit in which the buyer seeks to hold someone to account for their error or misstatement.

Misrepresentations in these situations can be either “negligent” or “fraudulent.” Negligent misrepresentation by a real estate professional is the same thing as an unintentional misrepresentation. It’s a mistake. They have communicated facts that are not accurate, but they didn’t do this knowingly. Fraudulent misrepresentations are different: when this happens, the facts reveal that the real estate agent or broker did know the truth but decided to spin things in order to get the deal done. Fraudulent misrepresentations are usually done for the agent’s benefit. A seller’s broker may be held legally liable to a buyer for either negligent and/or fraudulent misrepresentation.  See Young v. Johnson, 538 So.2d 1387 (Fla. 2d DCA 1989).


Winter park canal

The Case of Florida Home with Canal Access That Was Denied the Buyer

Several years ago, Anthony Attanasio and his wife Roxanne Attanasio, along with several of their neighbors, bought homes with lots that backed up to a beautiful Florida canal. Their properties were scenic — there were wooded areas and tall trees, which not only added to the ambiance of the place but provided privacy and a “natural buffer.” In fact, they paid a premium for these lots just because of these added attractions.

So, imagine their dismay and frustration when they learned that most of the tall trees were going to be cut down and removed; and that a six foot fence was going up all along the canal, blocking access to the waterway from the homeowners’ lots.

This wasn’t what they paid for — so they sued. They sued the developer of the community as well as the real estate agents that had given them the understanding that they would be able to enjoy the canal and that the trees were going to be there.

Specifically, they alleged in their lawsuit that they were told things like there would be a big easement at the rear of their lots, next to the waterway and that they could use the canal for boating or fishing or simply to enjoy the water view. Additionally, they were told that the pretty wooded area next to the canal would be kept with its lush foliage and big trees leaving them with a “natural buffer.” Finally, the lots would have sprinkler systems installed where the water would be provided by nearby lakes and the buyers would not have to pay for the water use. Their grass would be watered for free via the installed sprinkler system.

What a deal, right? Who wouldn’t want one of these lots and to live in a nice home built near the pretty Florida canal?

Empty Promises & Statements Form Basis for Misrepresentation Lawsuit

NONE of this stuff proved to be true after the buyers purchased their lots. These were all misrepresentations made to them which they relied upon when they closed on their lots in Mission Bay. Here was what the agents specifically told Anthony and Roxanne Attanasio when they were thinking about buying their lot — as he described in his deposition (again, quoting from the opinion):

a. that there would be a twenty-five (25) foot landscape buffer easement at the rear part of the lot;
b. that he would have the use of the land behind his house that bordered the canal, as well as use of the canal itself;
c. that the wooded area to the rear of his lot would be allowed to grow and act as a natural buffer, and that the trees growing there would not be removed;
d. that the sprinkler system for his lot would obtain water from the canal or a nearby lake, which would prove beneficial because it would free him from any water bills;
e. Because of the purported benefit provided by the canal lots, the Defendants were charging a lot premium; and
f. The lot premium originally charged for Mr. Attanasio’s lot was $11,000. Although Mr. Attanasio advised the sales agent that this price was too high, the agent explained that “it was well worth it because you had access to the canal and a lot of benefits that you wouldn’t have on another lot.” To avoid losing the sale, the agent said he’d “do (Mr. Attanasio) a favor” and reduce the premium to $8,000.00.”

Pretty specific stuff, right? And as Mr. Attanasio detailed, these were very facts which built up the value of that lot in the eyes of both he and his wife. They were going to be able to access the canal, and they weren’t going to have to pay to keep the grass green. A big deal here: they paid MORE to get these amenities, and even haggled with the agent over how much of a premium they were going to have to pay over the standard lot price in order to have these bonuses.

The defendants tried to argue that they couldn’t be held liable here because none of this stuff was in writing (a “statute of frauds” defense). They lost when the reviewing court considered things. The misrepresentations here could form the basis of a lawsuit seeking money damages against the defendants for the difference in the value of the land as it was represented to the buyers and the land which they purchased.

See, Attanasio v. Excel Development Corp., 757 So. 2d 1253 (Fla. Dist. Ct. App. 2000).

Victim of Negligent Misrepresentation: Florida Real Estate Lawyer Can Help

If you are the owner of Florida residential real estate who suspects that you relied upon a misrepresentation by a broker or agent, then you need to consider whether or not you have legal claims for money damages against your broker or agent, as well as the possibility of rescinding the deal or getting other kinds of relief. An experienced Florida real estate attorney can help you decide your best options in the situation and can negotiate on your behalf as well as filing a lawsuit if necessary for you to get justice.


Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

Misrepresentation by Real Estate Agent: Wrong Square Footage in MLS Listing

Posted By on August 4, 2015

In Florida, real estate agents and brokers are seen as experts in their field (whether it be residential, commercial or industrial property) due, in part, to the fact they are licensed by the State of Florida to do business in our State. Licensure brings with it both the respect of being a licensed professional and also the legal duty to exercise care to protect those with whom these agents and brokers are dealing (”fair dealing”).

Misrepresentations: Negligent and Fraudulent

Florida law says if a real estate agent knew or should have known that a representation made to a buyer is not correct, whether or not the agent makes the representation or the seller does it, then that agent can be held liable for damages.  In many instances, an agent has a duty to investigate whether or not his or her statements are true and to give all interested parties correct information. That’s being a professional. It’s also not being negligent under Florida law.

In Florida, a negligent misrepresentation occurs when a real estate professional provides inaccurate or wrong information in a residential real estate transaction, but does not do so intentionally. It’s a mistake. It can be spoken or written. It’s a mistake and even if it was an innocent mistake; if the real estate agent or broker knew or should have known the information was incorrect they will be held liable to the injured party if they have been damaged because of the mistake or omission.

A fraudulent misrepresentation occurs when it’s more than a mistake: the agent or broker is aware that something is being misrepresented, they knew the information was wrong, and that someone is relying upon that misinformation, allowing the person who relied upon the information to be hurt and damaged.

1. Buyer Beware?

Many people are surprised that there’s not any “caveat emptor” or “buyer beware” protection for sellers and their real estate agents in cases of negligent misrepresentation. After all, if the agent didn’t know and just made a mistake, then isn’t the buyer just as responsible for investigating the property’s condition? Yes they are, but the seller still has a duty to disclose (to address this duty, we recommend having a seller’s disclosure statement part of any residential purchase and sales agreement).

Here, the Florida Supreme Court has made it clear that the doctrine of “buyer beware” doesn’t apply to people who are buying homes here in the Sunshine State.  Sellers and their agents have a duty to disclose facts that materially affecting the value of residential property which are not readily observable and are not known to a buyer. Here, it’s considered part of basic justice and fair dealing that there is a duty of disclosure. Johnson v. Davis, 480 So.2d 625, 629 (Fla. 1985).

2. Case Example: The Wrong Square Footage in the MLS Listing

Consider the case of Miller v. Sullivan, 475 So.2d 1010 (Fla. 1st DCA 1985). Mark and Patricia Sullivan decided to sell their home here in Florida, and signed a listing agreement with a licensed Florida real estate broker named Betty Hilgendorf to help them. The Florida real estate broker did what most everyone does here, which is list the home for sale in the MLS (Multiple Listing Service).

In the MLS listing for the Sullivan’s home, the square footage was shown as being “measured” at 1417 square feet. This was the number that Betty Hilgendorf was given by her clients, the Sullivans.

Meanwhile, another real estate broker, Edward Luce, had been hired by Robert Miller to help him find a house to buy. Luce found the Sullivan home in the MLS, showed the MLS listing printout to Miller, and Miller liked it. Miller liked it so much that he ended up buying the home.

According to trial testimony, Mr. Miller relied upon the MLS printout of the listing which stated that the house measured at 1417 square feet, and that he also relied upon his broker’s explanation to him that this square footage included the heated and cooled area of the house. When he agreed to buy the home, he thought he was getting 1417 square feet.

Mr. Miller then discovered that the 1417 was not an accurate number. The correct number was 1092. There was only 1092 square feet of heated and cooled area. There was an additional square footage of non-heated and non-cooled area which involved the garage and the utility room. That additional area was around 300 square feet.

So, the buyer got less square footage than he thought he had bought. Around 25% less. The square footage listed in the MLS was wrong.

Mr. Miller sued. He sued not just his broker, Mr. Luce, but also the seller’s broker, Ms. Hilgendorf, and the sellers, too. He sued the two brokers for breach of contract, fraud (fraudulent misrepresentation), and negligence (negligent misrepresentation). He sued the sellers for breach of contract and fraud (no negligence here).

In court, Mr. Miller lost his case against the sellers. The court ruled there was no evidence that Mr. And Mrs. Sullivan had made any representations, fraudulent or negligent, about the square footage to Miller. Additionally, there was no evidence that the listing agreement was incorporated into the sales contract between the seller and the buyer. The sellers were held to be not liable to the buyer for the misrepresentation of the square footage of the home. This was a “summary judgment” by the trial court judge that was approved by the appeals court.

However, the case could continue as to their real estate broker Betty Hilgendorf — no summary judgment for her. If the buyer could provide evidence to a jury that she had breached her duty of “honesty, candor, and fair dealing” to the buyer, then she would be liable for the misrepresentation in the MLS Listing.

Key facts here, according the the court, are:

  • Whether the square footage figure on the MLS listing is understood in the real estate community to represent heated and cooled area or the total enclosed or covered area of a house.
  • Whether Hilgendorf, as listing agent, had a duty to double-check by measuring the square footage figure provided by the Sullivans.
  • Whether the representation in the listing agreement that the square footage had been “measured” means that such measurement had been made by the listing agent or simply by the seller.

Victim of Negligent Misrepresentation: Florida Real Estate Lawyer Can Add Value

If you have been the victim of a misrepresentation by a seller, broker or agent, then you may have a legal action against these parties. Seeking out an experienced Florida real estate attorney to negotiate on your behalf (with the seller or with the real estate agent’s insurance carrier), and to file a lawsuit, if necessary, may be needed for you to get justice.

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.