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Last Update: 10/23/18

Will Your Fraudulent Misrepresentation Claim About The Square Footage Of Your Home Survive A Motion For Summary Judgment?

In Florida, after a plaintiff files a lawsuit (also known as a “complaint”), the defendant must file a formal response (called an “answer”) to the complaint. The plaintiff lays out his or her issues in the complaint, and the defendant responds by denying liability for the claims asserted by the plaintiff.


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After these two initial steps are taken by the parties, the process of gathering information and compiling authentic, admissible evidence begins. This is called the ‘discovery’ process. Under both federal and state law, after a certain amount of discovery has taken place, the defendant can file a motion with court for a “summary judgment.” In this request, the defendant is asking the judge to rule in his or her favor, arguing that there is no genuine issue of material fact in the controversy and as a matter of law, they should win.

Motions for Summary Judgments in Real Estate Broker Cases

Experienced plaintiffs’ lawyers expect Motions for Summary Judgment to be filed by defendants in many, if not most, lawsuits. Lawyers representing defendants love to use this tool, it’s common practice in Florida litigation cases.

However, just because it’s a common defense tactic doesn’t mean that it’s going to be effective or result in a win for the defendant. If the plaintiff can demonstrate that a material issue of fact exists, then the motion will not be granted.

Because a summary judgment takes away the plaintiff’s constitutionally protected right to a jury trial, Florida courts are hesitant to allow them. Before a summary judgment will be granted, all doubts regarding the existence of a material fact issue — the defendant has what is essentially the job of conclusively showing the judge that they have a right to what they’re asking to have. This is the highest burden of proof in civil proceedings. SeeHoll v. Talcott, 191 So.2d 40 (Fla. 1966)Sunshine State Insurance Company V. Jones, 77 So. 3D 254 (Fla. Dist. Ct. App. 2012).

Understanding the nuances of summary judgment procedure is particularly important in cases where a buyer of residential real estate discovers that the property they purchased isn’t the size or square footage that they understood it to be at closing.

Sometimes these errors in square footage are simple mistakes, and are simply the result of negligence. However, sometimes the buyer is intentionally mislead about how big or how small the property he or she is purchasing really is — and that intentional behavior is the basis of a fraudulent misrepresentation lawsuit against a real estate broker, real estate agent, and/or seller, in which the victim seeks recovery of their damages.

Can a defendant in this situation dismiss a lawsuit by filing a motion for summary judgment?

Consider the case of Miller v. Sullivan, 475 So. 2d 1010 (Fla. Dist. Ct. App. 1985).  Here, Mark and Patricia Sullivan decided to sell their house, and they put in up for sale with the help of their listing real estate broker, Betty Hilgendorf. In the listing agreement between the sellers and the broker, and on the Multiple Listing Service (MLS), their home was described as being “measured” at 1417 square feet.

Meanwhile, the buyer, Robert Miller, had decided to wanted to buy a house and had hired another Florida real estate broker, Edward Luce, to help him find a house to buy. Sure enough, the paths of the Millers and the Sullivans crossed and soon, Mr. Miller had entered in a purchase agreement to buy the Sullivan’s house.

Miller used the MLS listing printout as part of his decision to buy the place. Miller, the buyer, testified that his broker told him that the 1417 square feet included the heated and cooled area of the home.

Miller bought the home. A year passed.

Miller decided to sell it. When he prepared to put the house up for sale, he measured the home and discovered that the house was really only 1092 square feet. He also found out that the county record tax rolls showed the property to have 1092 square feet. Where was that other 300 or so square feet, the difference between what he thought he had at closing and what he now knew he really owned? That was the total square footage if you included the garage and utility room — which aren’t heated or cooled.

So Mr. Miller sued. He sued the sellers. He sued their broker. And he sued his broker. He based his claims on fraud, negligence, and breach of contract.

The sellers and their broker moved for summary judgment on the buyer’s claims against them, and the trial court granted their motion. So, Mr. Miller appealed that ruling and he won (in part) on appeal.

The appeals court held that the summary judgment in favor of the Sullivans, as sellers, would stand. There was no evidence presented to show that the Sullivans ever made any representations — either fraudulent or negligent — regarding the square footage of their house, and the broker listing agreement wasn’t incorporated into their sales contract with Mr. Miller.

However, the seller’s real estate broker wasn’t so lucky. The appellate court ruled that the summary judgment shouldn’t have been granted in the broker’s favor on the buyer’s claims against her.

Why? The buyer had evidence of disputed fact issues on whether the seller’s real estate broker had committed fraud or was negligent in handling the real estate transaction where the square footage of the property was inaccurate. For instance, there was an issue about the industry standard on the definition of square footage and how brokers report this information on the MLS; Does square footage include the total area of the premises (the total enclosed or covered area of a house) or does it just include the heated and cooled area of the home. There were other issues as well: did the broker check the measurements herself, and did she have a duty to do so?

The case was returned to the lower court to be resolved by either a trial or through settlement negotiations.

Read About The 70+ Appeals My Partner, Alan Sackrin, Has Filed Related To Improper Court Rulings (On Our Main Website)

Do You Have a Misrepresentation Claim Related To A Real Estate Transaction?

In South Florida, residential real estate closings happen every day. If you suspect something wrong in your recent real estate transaction, and that you may have been the victim of a seller, real estate agent, or real estate broker’s mistakes or outright fraud, then you may be able to recover your damages. An experienced Florida real estate lawyer can help you decide if you have a case worth pursing and if your claim can withstand a summary judgment motion.


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Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

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