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In Fernandes v. Rodrigue, the Appeals Court of Massachusetts addressed broker liability for affirmative misrepresentations regarding the size of property. The court held that a broker or agent is not liable for negligence for a good faith misrepresentation regarding acreage.
Fernandes sought property on which to build a retail furniture store and warehouse. Brown, a broker for Realty Search, Inc. (RSI), introduced Fernandes to a parcel in Raynham which belonged to Rodrigue. Fernandes and Brown inspected the site. Rodrigue told Brown he thought the land contained five acres. Brown checked the town records and found a tax bill and a copy of the deed, both of which indicated the property was about four acres. Fernandes agreed to purchase the property, but the sales contract did not contain the area of the property, except for the marginal notation “4 ac.” on a copy of the deed that had been annexed to the contract as an exhibit. After closing, Fernandes discovered the property was only 2.8 acres. He sued Rodrigue, Brown, and RSI for breach of contract and deceit, and Brown and RSI for misrepresentation.
With regard to the contract claim, the Appeals Court of Massachusetts found that it applied only to Rodrigue. The court stated that Rodrigue made no representations regarding the size of the lot to the buyers. The court held that the marginal notation at the top of the deed was not a representation by the sellers. Further, the metes and bounds of the property were properly set forth, and the buyers were in a position to have a surveyor calculate the approximate size of the property from those dimensions. The court held that in these circumstances, the buyer assumes the “contingency of quantity.”
With regard to the misrepresentation claim, the Appeals Court of Massachusetts held that Brown and RSI were not liable, noting that it was hard to imagine what inquiries about lot size a broker might have made beyond those that Brown made with the town. The court also concluded that one could hardly expect the broker to have a survey made, as it was ordinarily the buyer’s responsibility if a certain minimum area was a matter of importance. The court held that no disclaimer or recitation of source was required in the case of a person who states a fact on the basis of information reasonably thought to be reliable, and that particularly as to good faith statements in a sales contract about land area, the courts have long held the view that a misstatement as to area is not actionable, either for rescission or damages. Thus, neither Brown nor RSI was liable for misrepresentation.
Fernandes v. Rodrigue, 38 Mass. App. Ct. 926, 646 N.E.2d 414 (1995).
Editor's Note: To see pre-1990 Broker Liability cases organized by jurisdiction, click here.