Bulletin 1988 V19-1
The Real Estate Commission continues to receive many complaints against real estate brokers and salesmen who have made errors in measuring the square footage of buildings and structures being sold.
Misrepresentation of the actual square footage of property, whether intentional or negligent, is a violation of the Real Estate License Law which may result in discipline by the Real Estate Commission. In addition, such misrepresentation may subject the agent to civil liability if he or she is sued by the adversely affected party.
Consider the following scenario: The owner of a single-family house tells a listing agent with ABC Realty chat his house contains 1800 square feet. Although the listing agent believes from his ''walk-through'' inspection chat the owner's representation of square footage is accurate, he does not personally measure the house and calculate the square footage himself. Rather, he simply records " 1800 square feet" on the listing form and places the listing in the local MLS.
The house is subsequently sold by a sales agent of XYZ Realty who, based on the MLS property data sheet, tells the buyer chat the house contains 1800 square feet. When the buyer moves into his house after closing, he discovers chat the house is only 1700 square feet100 square feet less than what was represented to him. The upset buyer then calls the selling agent, the listing agent, and perhaps ultimately the Real Estate Commission and his lawyer.
Here, the listing agent, by failing to verify the square footage, is guilty of making a negligent misrepresentation. His failure to verify is not excused by the fact chat he viewed the house and believed the listed information to be accurate, nor by the fact chat the discrepancy was not a particularly large one. The listing agent has a duty to either personally measure the house or use ocher reliable means to accurately determine the square footage. Reliable sources indude either up-to-date blueprints or a current appraiser's report. The property owner is not a reliable source.
The liability of the selling agent under the Real Estate License Law depends upon whether he acted reasonably in relying on the listed data. In ocher words, would a reasonably prudent agent have suspected that the square footage was incorrect and checked to verify the size of the house? If so, then the selling agent may also have been guilty of negligent misrepresentation. No conclusive determination can be made based on the brief facts provided in the above example. Although ocher factors would have to be considered, it is doubtful chat the selling agent could have reasonably been expected to detect an error of 100 square feet without actually measuring the house. Generally, the larger the discrepancy, the greater the likelihood of the selling agent being held accountable for not personally verifying the square footage.
Suppose the listing agent had measured the house and determined The square footage himself but had made a mistake, or had written down the wrong information on the property data sheet. An agent may also be guilty of
negligent misrepresentation when the agent makes a mistake in compiling or communicating information about a property. The test in this situation is whether a reasonably prudent agent would have made the mistake. If not, then the agent will be held accountable for his mistake and will be guilty of misrepresentation.
Heated living Area
In order to properly determine the square footage of a home, the real estate agent must first determine the "heated living area" of the home. The "heated living area" of the home consists of only those portions of the home in which the occupants actually live and which are heated by the home's primary heating system (for example, the living room, den, kitchen, dining room, study, bedrooms, bathrooms, closets, pantry, foyer, utility room, and hallways). It includes the areas occupied by any stairwells, but excludes any floor space which has a ceiling of less than five feet. "Heated living area" does not include a garage, carport, attic, unfinished basement, outside storage room, porch, balcony, or deck, whether or not any of These features are attached.
When completing the property data sheet or otherwise communicating the square footage of a house, include only the square footage of the heated living area, as outlined above. The square footage of ocher features (such as the garage or attic) can be noted separately in the detail section or the remarks section of the property data shoes.
The Measurement Process
In order to accurately calculate the square footage area of a house, one should use the exterior measurements of the heated living area whenever possible. If the house has a basic square or rectangular shape and has either one story or two stories width the second story being the same size and shape as the first, then the measurement process is a matter of simple multiplication. But if the house is irregularly shaped, calculating the square footage becomes more difficult.
For example, when a house has more than one floor or level and the levels are different sizes, you must first calculate the area of the ground floor using exterior measurements. Then, if the second floor cannot be easily measured from the outside, you must measure the second floor from the inside, and add five (5) inches to the length and width measurements for the Thickness of each outside wall and inside wall. Finally, multiply the length of the second floor by the width to determine its area, then add it to the first floor area to obtain the total square footage of the house. For a split-level house width three levels, it may be necessary to measure all three levels from the outside in the manner just described for measuring a second floor.
Many houses are not built in a standard square or rectangular shape. If a house is L-shaped, the house can be "divided" by the agent into two rectangular boxes before computing Their areas. And if the perimeter of the house contains a number of offsets and projections, the agent may find it easier to simply (1) extend the outside measurements of the structure transforming it into a rectangle or square, (2) calculate the total area of the rectangle or square, and (3) deduct the empty space from the total area.
When measuring the square footage of a condominium or townhouse unit, the thickness of outside walls and party (shared) walls should be included, even if the unit owner does not legally own These walls. This is done so chat the square footage reported for condominium and townhouse units will be comparable to chat reported for detached houses. When measuring such units, it may be necessary to measure from the inside for all floors, adding in wall Thickness for outside walls, inside walls, and party walls, as appropriate.
Square footage is an important consideration to most home buyers. They use it as a tool to compare one home to another, often equating the size of the house to its value. It is, therefore, very important chat agents take great care in measuring and reporting square footage, keeping the following points in mind: