Last Update: 04/18/16
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).
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).
A good piece of advice is to at least speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.
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