We're getting less condo than we paid for!

[Avocado22]

What is the name of your state? Massachusetts

We made an offer for a condo that was stated to be 1300 square feet. We insisted in the offer contract that the condo had to be as described in the MLS listing, which said that the condo had 1300 square feet of living space. Now that we've had a chance to inspect and measure the condo ourselves, we find that it is only 1200 square feet. We haven't yet signed the purchase and sale agreement (P&S). We have a few questions:

1. You measure square footage in a condo by the interior living space, right (i.e., from the interior surface of the walls)?

2. What are our remedies? Can I compel specific performance with an abatement of the price, or can I just walk away? I don't want to walk away, but I don't think that it's fair for them to misrepresent (negligently or intentionally, I'm not sure which) the size of the condo and still just get the full price.

3. If I don't have a remedy other than rescission in real estate law, what about suing for unfair business practices under chapter 93A? We're buying from a builder of property, not just some other shmuck.

Thanks in advance for any feedback!

 

[seniorjudge]

Q: You measure square footage in a condo by the interior living space, right (i.e., from the interior surface of the walls)?
A: Yes; ask the sellers. They may be measuring it differently.

Q: What are our remedies? Can I compel specific performance with an abatement of the price, or can I just walk away?
A: For what? You have not been damaged. Negotiate with them if you want. You can't compel specific performance since you have no contract. You can't sign the contract now (knowing the square footage) and then take it to court.

Q: If I don't have a remedy other than rescission in real estate law, what about suing for unfair business practices under chapter 93A?
A: Again, you haven't been damaged. There's no recission since you have not bought anything. I don't know how unfair business practices are defined in your state but a hundred square feet in a condo seems a pretty minimal deal.

You are talking about a ten by ten square; if you can live without that, buy it; if you can't, don't.

 

[lnghng]

The square footage in the listing or deed sometimes is much more than the interior space. They maybe count the wall. It's normal if the real square footage is 10% less. So when you compare the different apartments, you should be careful to know what the interior space for the property is.

 

[Avocado22]

We do have a contract

Thanks for your responses. I see that I was unclear in that I didn't say that we do, in fact, have a contract.

In Massachusetts, one first signs an offer contract and then signs a "purchase and sale agreement" (P&S) a few days/weeks later. I know that the P&S sets forth rights and obligations in more detail than the offer contract, but I'm not sure to what degree the parties are bound by the offer contract.

In any event, I understand the following to be true: I am a nonbreaching party to a contract that sets forth that I promise to pay $X for a property of 1300 square feet. The property is only 1200 square feet. I believe that the seller is in breach, but I want to alter the deal, not back out of it.

 

[HomeGuru]

Thanks for your responses. I see that I was unclear in that I didn't say that we do, in fact, have a contract.

In Massachusetts, one first signs an offer contract and then signs a "purchase and sale agreement" (P&S) a few days/weeks later. I know that the P&S sets forth rights and obligations in more detail than the offer contract, but I'm not sure to what degree the parties are bound by the offer contract.

In any event, I understand the following to be true: I am a nonbreaching party to a contract that sets forth that I promise to pay $X for a property of 1300 square feet. The property is only 1200 square feet. I believe that the seller is in breach, but I want to alter the deal, not back out of it.

**A: in many cases the SF of a condo is determined by the original developer at time of construction for the CPR documents and later by an appraiser during a resale process. Also in many cases, there are 2 different sizes of the apartment unit; one determined by total living area and the other determined by gross area.
For marketing purposes, many sales agents use the larger SF size for MLS and marketing pieces. I have actually seen fact sheets and MLS listing forms that describe the unit as 2000 SF but the actual living area was only 1200 SF because the agent including a huge lanai and big storage closet.
Also, when the original developer gave the SF, the methodolgy for measuring the units may have been different ie. measuring from 1/2 of inside common walls vs measuring from wall to wall inside the unit.

Unless, the sales contract specifically states you are buying the unit of 1300 SF or paying X amount of dollars per SF and that is how the pruchase price was determined, you have a weak case.

 

[Avocado22]

Thanks again!

Thanks, that's helpful.

We added language to the form offer contract to say that we were offering $X for the condo as described in the MLS listing. The MLS listing states, with no "approximate" or other disclaimers, that the gross living area is 1292 square feet, and also says, in the descriptive blurb, that the condo offers "1292 square feet of living space." The condo docs specify that the living area is measured from the interior plane of each wall.

 

[HomeGuru]

Thanks, that's helpful.

We added language to the form offer contract to say that we were offering $X for the condo as described in the MLS listing. The MLS listing states, with no "approximate" or other disclaimers, that the gross living area is 1292 square feet, and also says, in the descriptive blurb, that the condo offers "1292 square feet of living space." The condo docs specify that the living area is measured from the interior plane of each wall.

**A: do you have a Realtor? If so, he/she is an idiot to have written the contract with the language "as described in the MLS listing".