I sue over deceptive advertising of property

Gray,

I don't want to sound mean, but why would you sign a contract without double checking the sq. ft.? Or even a better question is, why did your lawyer let you sign a contract that DIDN'T have sq. ft. in it?

What exactly are you going to sue for? Maybe the difference in sq. ft. times the original price per sq. ft.? Or are you just trying to get out of the contract with your deposit intact?

Honestly, it sounds as if a lawsuit is going to cost you a lot of time and money, and in the end, I could see the courts deciding that you saw the apartment (and had a chance to measure it yourself), then you signed a contract that didn't state the sq. ft. (thus implying that it wasn't really significant to you), and therefore have no case.

But believe me, I would love for you to successfully sue an individual that inflated the sq. ft. b/c I find such a practice to be an example of fraud, but I just don't think it sounds like you have an open-and-shut case.

Gray, I'm not a lawyer but have fought a few battles. If a broker makes a representation (a statement of fact) and you in good faith relied on such representation and entered into a contract, if it were me, I would fight it to the ends of the earth.

I'm not aware that fraud or more politically correct put, attempt to deceive for the purpose of enriching oneself (broker gets more commission), is an undefensible premise.

Perhaps the language of the contract could have been more specific but fraud is illegal whether is be written into a contractual agreement or not. Like I said, I'm not a JD but the aforentioned would be the crux of my argument and if need be, I would seek a second, third or fourth legal opinion.

Gray,

It is standard practice to inflate square footage 20% or more. Actually, your case in mild compared to most, and there has been more than one thread regarding that in this forum. I'm sorry to say this, but I share memito's opinion that you've probably realized now that you overpaid and want to back up. Good luck.

Gray,

I find the practice of inflating square footage in listings offensive and sleazy, but I agree with the others that it's still your responsibility to measure BEFORE you sign the contract.

Where and how did the 2600 number appear? If it was just in the listing, with the usual disclaimers, forget about it. If there was any explicit "representation", then you might have a shot, but still a very slim one.

I really don't think you have much of a case here, if any. It is up to you, the buyer, to verify things such as square footage, especially in prewar co-ops, which generally don't have specific records on this (unlike new construction, where square footage info is very specific).

If exact square footage is so important to you, you should have measured the unit yourself BEFORE signing any document (easily done during a 2-minute walk-through) or made certain there was specific language in the contract to protect you if the square footage came up short (something I've honestly never heard of, but doable, I suppose).

Did you ever bother to ask the realtor where he got the square footage info? Was it from the seller? An old floorplan? Did he measure it himself?

Clearly you deemed the unit to be of sufficient size or you wouldn't have made an offer and signed a contract to purchase. Are you honestly trying to say you wouldn't have done that if you'd known the apartment was slightly smaller? Or that you would have paid less? Seriously??

^^ 2-minute walk-through should read 20-minute walk-through

Now that I have re-read your post, I am going to take a guess that the extra 400 sq ft might include a portion of the building's "common space" given that this is a co-op (you are buying a "share" of the building, not the specific apartment).

Could that be the case? (Anyone, please correct me if I am barking up the wrong tree here...)

Check the offering documents to see if square feet are mentioned,or if the plans show the sizes of the rooms to be materially wrong. IF the offering documents are deliberately inaccurate and were sent through the mail, you can ask the attorney general to file action for mail fraud, and even racketeering.

HOWEVER, there is no guarantee that the bank's measurement is correct. I once had a bank measure an 800-square foot apartment as having 680 square feet. Absolutely impossible given that it had 2 large bedrooms and the living room was 27' x 12'. Sometimes square feet are measured from the inside of the wall, sometimes from the surface of the walls, sometimes they only count living space and not wall space, closet space. You will need to find out the different methodologies used.

If there was abject fraud, you are not without remedy. That may not be the case, however.

Memito is correct, Gray. With a co-op you are not buying real property but shares of a corporation. Square footage has nothing to do with anything. You'll notice many brokers don't even list square footage in co-op sales, and will hazard only a vague guess if you ask for specific numbers.

It is indeed up to you to determine the square footage yourself if that is an important issue for you.

What a loser.

You were going to spend a few million and you want to plead ignorance?

If you find a good lawyer, give me his name. I need a coop lawyer.

I understand that it is ultimately the buyers responsibilty to protect themselves in cases like this but generally don't you accept the listing information as being accurate and truthful.I've never heard of someone measuring an apartment's size before signing a contract to see if it's as advertised.And I've never heard of the language drafted in the contract for co-op purchases either.If you later discover that the broker was deceptive shouldn't there be some kind of remedy?

I second the motion to determine what methodology was used by the bank to arrive at the square footage. It is common to quote gross square feet, which would include the walls, ductwork, etc. In a pre-war building, I could easily imagine losing 400sf to one of the standard "net" measures, so there might not really be any issue here.

It is also nearly always the case that there will be weasel words whenever a square footage appears in print or on the web such as:

All information furnished regarding property for sale, rental or financing is from sources deemed reliable, but no warranty or representation is made as to the accuracy thereof and same is submitted subject to errors, omissions, change of price, rental or other conditions, prior sale, lease or financing or withdrawal without notice. All dimensions are approximate. For exact dimensions, you must hire your own architect or engineer.

So unless the broker was quite careless, you have no claim against the broker.

Finaly, while I hate to have to say it, you should always assume the opposite of everything a broker says until proven otherwise. For example, if you are looking out a window across a parking lot and the broker "helpfully" happens to mention that the view will remain open because the parking lot owner has sold his air rights, you should assume instead that the parking lot owner has figured out how to transfer air rights to the property and all the lot line windows of the unit you are looking at will be bricked over. (And yes, this is in fact one of the many outright falsehoods spoken to me by that silver tounged devil known as the broker.)

**I understand that it is ultimately the buyers responsibilty to protect themselves in cases like this but generally don't you accept the listing information as being accurate and truthful**

No. Especially not with a major purchase like a home.

**I've never heard of someone measuring an apartment's size before signing a contract to see if it's as advertised**

Then you haven't been doing this for very long. And you need to forget the "as advertised" crap. This isn't like buying a new appliance. Real estate is a completely different ball of wax.

It's your lawyer that didn't do his job. I'm assuming he's a real estate lawyer he should have put the sq footage in the contract, etc.

OriginalPoster, what kind of a problem you face?

**It's your lawyer that didn't do his job. I'm assuming he's a real estate lawyer he should have put the sq footage in the contract, etc.**

Huh? Why? This is not standard procedure. The attorney would have only done that if the client had specifically asked him to. Honestly, Julia, your uninformed, blanket statements can get tiresome.

"Honestly, Julia, your uninformed, blanket statements can get tiresome."

girl's about as sharp as a sack o' wet mice

Squid,

I am not familiar with RE contracts, but if that is the case, then it scares the hell out of me. Why wouldn't there be an agreed approximate sq. ft. total in a contract? I realize there are differences in opinion on how to measure, but that doesn't mean it ia impossible to come up with a number. Heck, real estate ads always seem to be able to estimate sq. ft. - often incorrectly, so why isn't it addressed in actual contracts?

Just wondering. Thanks!

Gray,

A few things that aren't clear from the post: 1) what was the exact nature of the erroneous square footage representation, and 2) what remedy are you looking for?

I (and I imagine others here) am not an expert in real estate law, but if you (think you) have a legitimate gripe, why not talk to a couple of real estate lawyers and see what (if anything) they think can be done about it.

squid.....since your lawyer is charging you $1.50 per hour...at that rate he probably wouldn't know.

why would you put the square footage in a contract? why not put the height of the walls and write about what they are made of?

There's no relevance - both parties visited the property and looked at it, the buyer was free to make whatever physical inspection he or she wanted to make. Certainly the size of the apartment was not hidden so long as there was a visit by the buyer or the buyer's rep.

everyone knows sq footage is never what they say but if it was put in the contract they have something binding...AND the real estate lawyer should have known that and insisted it be put in the conract. The buyer wouldn't think the sq footage is incorrect but the lawyer who has done this before and run into this problem should have known.

No julia, you are being silly.

If the buyer went in and saw the place himself, was able to make a physical inspection himself, and was an educated buyer (the presumption is that you are educated and have diligence resources when you spend several million), it doesn't matter what the contract says about observable / measurable attributes like square footage.

There can be no deception about what is in plain sight to the buyer, only a delusioned buyer.

The OP demonstrates a remarkable degree of naivete re: the NY RE market. Puffery and exaggeration in a broker's material is practically never actionable. Your attorney's due diligence does not include confirming the advertised sq./footage calculation. If you want that done, you can hire an appraiser to do it and warrant the accuracy. If you didn't tell the attorney to confirm this explicitly, the attorney isn't liable since it has nothing to do with the finances or stability of the building or ability of seller to convey title. Searching comparables in the building may have revealed a more accurate sq/ft. measurement of apts in the same line, but that's really your job--no one else's.
My advise: suck it up and move on. There's nothing you are likely able to do that wouldn't consume a ridiculous amount of time and energy for little return. What remedy would you seek? What would you actually sue for?

"I've never heard of someone measuring an apartment's size before signing a contract to see if it's as advertised."

Are you serious? I measured my apartment before renting, much less buying. There is no way I would ever, and I mean ever, spend millions on a place and not know how big it actually is. At roughly $1k+ per sq foot, it would behoove me to do so. The only situation where I believe you have a remedy is if they sent you floorplans with measurements that didn't add up. Short of that, I think you will only waste a lot of money and time. Here's why:
1) There is no mention of square footage in the contract
2) Any verbal or otherwise estimation is clearly only that - an estimation on the part of the seller/seller broker. They have legalese and disclosures up the wazoo protecting them from exactly this type of case. And maybe it was 2200 net, 2400 gross or something (made that up). And they can say 2600 is a close enough approximation to 2400.
3) You had ample opportunity to do due diligence. You saw the place (probably multiple times) and found no deficiency. And with free and fair opportunity to do your inspection, you signed your contract. This will be the killer from a judges perspective. It would be one thing if you signed on a new construction or something where you were never able to make a physical inspection. Its very difficult to find judgment against something like this where you could easily verify with minimal effort. It would be another situation, for example, if there was massive mold damage in the walls AND the seller knew but did not disclose.

You can fight it if you want, but it's throwing good money after bad. I'd chaulk it up to a lesson learned. Though my sympathies because it's an expensive one to learn.

Even floorplans with measurements provided by the seller's agent are not actionable generally. They are typically presented as estimates or somewhere in the broker's materials is a tiny asterix with a notation that measurements are estimates.

Regardless, and this has been discussed here in the past, there is no remedy in reality. If you sue, you must propose a remedy and be prepared to explain how you arrived at that remedy. It must be consistent with the law. You cannot typically just invent a number and say that is what would make me happy. Here, the contract has been performed. You are arguing that you did not enter into it "intelligently" as the law would call it, because you were misled. Ok. So now what? Do you want the sale reversed? I don't think that's ever been done based on the claim you make. Undoing a sale is an extraordinary remedy and not one I'd expect to be available here. You want to sue for damages instead, perhaps? How exactly will you suggest damages be assessed? And against whom? The seller, the agent, your attorney? If the representation was negligent and not actual intentional fraud, you will have to establish that you weren't more than 50% negligent yourself in order to recover any money--could you do that? Seriously, what would you sue for?

It sounds like Gray hasn't closed yet. I take it one possibility (if he were able to show he had been wronged) would be to get his/her deposit back and not have to go through with the contract.

The question of whether to sue the broker and firm begs the question of whether Gray intends to go forward with the contract. The borker and firm were AGENTS of the seller, and I would think that the seller is the one to be sued (and the others for good measure), but the seller would likely implead (or bring into the suit) the agent and firm to indemnify seller if seller found liable. BUT if the seller provided the info to the agent and firm, then seller is kinda stuck with any judgment against seller. Still, you can't go through with contract AND sue the seller very easily. Perhaps threatening to gum up the works would be enough if the attorney is a tough and effective negotiator. The goal of buyer's attorney should likely be to seek some kind of concession(s), credits, price adjustment. I'd love to know what the buyer thinks the place is worth versus what was signed for, and what comparables in building are compared to the seller's assessment.

Gray2. This should have been reviewed and negotiated prior to lease signing, this is what attorneys get paid for, and your attorney should have explained to you that many developers include common space and wall space (thickness)in the square footage in order to maximize profits .It happens all the time. the building department needs to come up with a standard way of counting square footage maybe counting both actual interior square footage and what the square footage including the common space walls columns etc.

Stakan I have a crazy coop board and I need a lawyer to help.

There was a case a while back where Brown Harris was successfully sued over square footage representations. I do believe it can be grounds for a suit. However, you haven't closed the deal so your remedy is to rescind the contract and get your deposit back, not to sue for damages. If you had closed on reliance, that's a different story. But with the appraisal in hand, you now know what the square footage is. Best bet is probably to go back to the seller and threaten to kill the deal unless there is a price adjustment.

afford living without a lawyer

Is there any follow up on this question ? Would like to know what happened in the end