When a buyer discovers after closing that their new home has significantly less square footage than the appraisal district or the MLS listing indicated, the immediate reaction is often: "Can I sue?" This article discussed the legal realities of square footage discrepancies, exploring why these cases are often harder to win than they appear.
The Materiality Hurdle
The first question any attorney will ask is: how much square footage are we actually talking about? In legal terms, this is the issue of materiality. If a 5,000-square-foot house is off by 50 square feet, most courts would find that discrepancy immaterial. To have a viable case, the difference must be significant enough that it would have realistically changed the price you were willing to pay or your decision to buy the home altogether.
If you decide to pursue a claim, you will likely need an expert witness, such as a professional appraiser. This expert must testify that the missing square footage directly impacts the fair market value of the home and that the benefit of the bargain you received was significantly less than what you were promised.
Justifiable Reliance vs. Due Diligence
A major defense in these cases is that the buyer saw what they bought. In residential real estate, buyers walk through the home, hire inspectors, and often have their own appraisals performed by their lenders. Because of this, courts often hold that a buyer cannot claim they were misled by a number on a listing when they had ample opportunity to inspect the physical space.
Furthermore, most MLS listings and sales contracts include disclaimers stating that square footage is approximate or "per appraisal district" and should be verified by the buyer. Under Texas law, if you were explicitly told to verify the measurements and chose not to, a court may find your reliance on the seller’s numbers was not justifiable.
Causes of Action: Fraud and the DTPA
While difficult, there are legal avenues for a buyer if the misrepresentation was severe.
- Statutory Fraud: Under Texas Business and Commerce Code § 27.01, a person who makes a false representation of a material fact to induce someone into a real estate contract can be held liable for actual damages. If the seller acted with "actual awareness" of the falsity, they may even be liable for exemplary (punitive) damages and attorney's fees.
- The DTPA: The Texas Deceptive Trade Practices Act (DTPA) protects consumers from "false, misleading, or deceptive acts." If a seller or agent knowingly misrepresented the size of the home, a buyer might recover up to three times their actual damages plus attorney's fees.
Ultimately, winning a square footage lawsuit requires proving that the seller didn't just pass along wrong data from the county, but intentionally or negligently misrepresented a fact that fundamentally changed the value of your investment.
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