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Sander v. Pollara

A-1342-97T1 (N.J. Super. App. Div. 2000) (Unpublished)

CONTRACTS; LIVING SPACE; MEASUREMENT—There is no agreed-upon standard within the construction industry by which to measure the size of a house.

Two attorneys purchased a home. The listing broker’s records showed the following: “‘Taxes New’, ‘Age 2 YRS’, ‘Garage Oversized 1’ and ‘House is 2,500 sq. ft.’” The multiple listing service described the garage as “GAR 2 OS” and said the home was a “2,500 sq. ft. house.” The decision to purchase the house was made after several visits and inspections. Six years after closing, the buyers commenced suit, alleging fraud, breach of warranty, negligence, and violation of the Consumer Fraud Act. The claims were premised on the stated discovery that the house was not new when purchased and “that it contained only 2,160 square feet of living space as opposed to the anticipated 2,500 square feet and that the garage was an over-sized one, not a two-car garage.” The difference in size was attributable to the garage; the home measured 2,500 square feet when the garage was included in the calculations. The buyers claimed it would cost them $60,000 to modify the house to have it comply with what they understood they were to receive. The Court rejected the Consumer Fraud Act claims against the sellers because they were not professional sellers of real estate. Even though they built the home themselves, there was no evidence that it was built for any other purpose than as the seller’s own residence. “As an ‘isolated sale of a single family residence by its owner,’ the transaction was removed from the scope of the consumer fraud statute.” Further, the Court did not feel that the buyers had demonstrated a “material misrepresentation of a presently existing or past fact, made with knowledge of its falsity and with the intention that the other party thereon, resulting in reliance by that party to his detriment.” In doing so, it rejected the buyer’s claim that the difference in the size of the home was material. The Court found that the buyers had visited the home on several occasions prior to purchasing it and its configuration, lay-out, and size were apparent to them. The Court felt they could make their own assessment of how much space would be available to them when they took up occupancy. Moreover, that the garage was not a two car oversized garage should have been obvious to the buyers during their inspection. Further, the buyers made no showing of how a shortfall of about 300 square feet interfered with their use and occupancy. Indeed, their own submissions to the Court said “they were unaware of any question in this regard despite having lived in the house for several years until they had the property appraised in connection with an attempt to refinance it.” The Court refused to consider a “mere blanket assertion, made some years afterward, that plaintiffs considered the dimension material, sufficient to create a substantial dispute of fact for purposes of summary judgment.” A similar situation existed insofar as the buyers’ claim of fraud resting upon the description of the home as “new.” The buyers knew that the sellers had lived in the home and, indeed, even purchased some of the seller’s furniture. Further, the buyers’ own application for flood insurance indicated the date of construction. In addition, the buyers made no showing of “how it could possibly have been material to their decision to purchase this home, that they were not the first individuals to occupy it.” For that reason, the Court was satisfied that the lower court correctly granted summary judgment in favor of the sellers on the claim of common law fraud. The claims against the brokers were dismissed on a similar basis and, further, the Court pointed out that there had been no showing that “there was an agreed-upon standard within the industry by which to measure the size of a house, i.e., whether to measure living space only or to measure the size of the entire foundation, including ancillary areas such as the garage.”


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