Advertisements in which houses are offered for sale, such as on Funda, generally state the number of square meters of living space. For the buyer, this is obviously important information. What if after the sale it turns out that the actual number of square meters is less than stated in the advertisement? Can the selling broker be held liable by the buyer?
Measurement Instruction
Estate agents who are members of the NVM, VastgoedPro or VBO must comply with the Measuring Instruction Useable Area of Dwellings when determining the usable area of a dwelling. These instructions specify how exactly the usable area must be determined. If it appears that the property agent has not complied with the Measuring Instruction, he can be sued. But it does not automatically follow that the buyer must be compensated.
No contractual relationship
The selling broker acts on behalf of the seller. Thus, there is an agreement between seller and broker. This means that the buyer cannot sue the real estate agent for “breach of contract.” However, the buyer can claim that by stating an incorrect floor area, the selling broker has acted unlawfully towards the buyer and must therefore compensate the buyer for the resulting damage. Our highest court (the Supreme Court) expressly determined this in a February 2019 ruling.
However, this does not answer the question of how then to determine the buyer’s damages as a result of the broker’s mistake.
Damage
The simplest approach to determining damages would be to divide the purchase price paid by the buyer by the number of square feet listed in the advertisement and use that to determine what amount (per square foot) the buyer “overpaid.” This reasoning has been followed in several court decisions.
However, a more nuanced approach to this issue has surfaced in more recent court and Supreme Court decisions. These indicate that, after all, the purchase price does not depend solely on the number of square meters of living space.
Comparison
In each specific case, for purposes of determining damages, it must be determined what would have happened if the buyer had known of the correct number of square feet of floor area when the purchase agreement was entered into. Would the buyer then have been willing to pay the same purchase price? In that case, there would be no damages. Or in that case, would the buyer not have proceeded with the purchase at all, and in what position would that have put the buyer? Or would the house have sold for a lower price in that case? To answer the latter question, what the market situation was, whether there were other potential buyers, etc., is also important.
If the damages cannot be precisely determined (as is the case with this issue), the court must estimate the damages. All the circumstances of the case play a role in that estimate. The starting point in determining the damages must be a comparison between, on the one hand, the actual situation in which the buyer finds himself and, on the other hand, the (hypothetical) situation in which the buyer would find himself if the broker had not made the mistake. Thus, the automatism of disconnecting the purchase price from the number of actual square meters of floor space certainly does not (anymore) lead to the adjudication of a claim based thereon.
