The Court of Appeal in Amsterdam held that an NVM real estate agent was liable towards the buyers of a house in connection with an incorrect statement by the agent of the net floor area of the house, contrary to the so-called measuring instructions. The estate agent lodged an appeal in cassation.
What was at stake here?
In 2010, the Nederlandse Coöperatieve Vereniging van Makelaars en Taxateurs in onroerende goederen NVM U.A. (hereafter: NVM) drew up a measurement instruction for determining the usable area, based on the NEN standard 2580. Use of this measurement instruction has been compulsory for all NVM estate agents since September 2010.
An NVM estate agent was given an assignment to mediate in the sale of a house. The property was measured by the real estate agent and the sales brochure stated a living area of approximately 80 m2. The sales brochure also included floor plans with measurements of the ground, first and second floors. The asking price of the house was € 319,000 (costs-to-buyer).
After several viewings, the buyers bought the house for an amount of € 307,000. They were not assisted by an estate agent. In the sales contract signed by the buyers and sellers, which was also signed 'for seen' by the estate agent as 'NVM member acting for the seller', Article 5.11 states: 'Difference between the stated and the actual size does not give either party any right'. A few years later, the house was offered for sale again by the buyers. The living area turned out to be approximately 65 m2 instead of 80 m2. The buyers eventually sold the house, after lowering the asking price, for an amount of € 317,700.
The buyers sued the estate agent who had sold the house to them on the grounds of unlawful conduct. In the proceedings, the buyers claimed a declaratory judgment that the estate agent was liable for the damage they had suffered and payment of more than €65,000. They argued that they would not have bought the house if they had known that it only had a living area of 65m2 instead of 80m2.
Judgment of the Court of Appeal
The Court of Appeal ruled, like the District Court, that the estate agent was liable for the incorrect representation of the living area and motivated this as follows:
"It follows from HR 13 July 2018, ECLI:NL:HR:2018:1176, that an estate agent has in principle acted unlawfully if he has not determined the usable area of the house in accordance with the measurement instruction, and that a reliance on Article 5.11 of the purchase agreement and/or Article 7:17 (6) of the DCC cannot help him. The real estate agent has acted unlawfully towards the buyers because it must be assumed that he has not determined the usable area of the house in accordance with the measurement instructions and therefore incorrectly. The estate agent has not stated any (sufficient) facts or circumstances from which it follows that the buyers could not reasonably trust the living area of approximately 80 m2 mentioned in the sales brochure of the house. The above also means that the appeal of the estate agent to the buyers' own fault, because they failed to have the living space measured, does not hold. The argument of the buyers that they would not have bought the house if they had known the correct living area was rejected as insufficiently substantiated. However, the Court of Appeal does assume that in the hypothetical situation a lower purchase price would have been achieved. The house was listed on the site in the category above 75 m2, in which category the buyers only searched. It must be assumed that the sellers would have been satisfied with a lower purchase price in a situation where the correct living space was listed. “
The extent of the loss was then to be determined by comparing the situation in which the buyers find themselves with the situation in which they would have been if the unlawful conduct of the estate agent had not taken place and he had complied with the measurement instruction. As the extent of the damage could not be accurately determined, it was estimated. The Court of Appeal found it plausible that the agreed selling price would have been €300,000, which brought the damage to an amount of €7,140 (including transfer tax).
Supreme Court ruling
The Attorney General at the Supreme Court considered the opinion of the Court of Appeal to be correct and stated, among other things, that it can be deduced from rules of experience and facts of general knowledge that an incorrectly stated net living area usually has at least some influence on the price that buyers are prepared to pay for a dwelling, most strongly in the case of small dwellings. The Supreme Court followed this and ruled that the complaints against the judgment of the Court of Appeal could not lead to the judgment being set aside. The appeal in cassation was therefore rejected by the Supreme Court.
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