As part of a real estate transaction, purchasers may sometimes rely on representations of a real estate agent. What relief does a purchaser have when he subsequently learns after the purchase of the property that the real estate agent’s representations were false? Does a purchaser have a cause of action against the real estate agent? Depending on the facts, the purchaser may indeed have a claim.
The Fifth District Court of Appeal in Dziegielewski v. Scalero, 2022 WL 17542575 (Fla. 5th DCA 2022), recently held that it was an error for the trial court to dismiss a purchaser’s complaint against a real estate agent which alleged fraudulent inducement and negligent misrepresentation based on a real estate’s agent express representations to the purchaser that the condominium unit she purchased included exclusive use of three garages despite the agent’s knowledge that the unit only had rights to one. In Scalero, the seller had listed her condominium unit for sale through her real estate agent. The MLS listing for the property represented that three garages came with the unit. Shortly after posting the MLS listing, the condominium association notified the real estate agent that the unit came with the exclusive right to use only one garage space; however, the real estate agent never modified the MLS Listing. The purchaser desired to purchase the unit based upon the representation it came with the right to use three garage spaces. When the purchaser received the real estate contract, she noticed it contained conflicting provisions as to whether the unit came with one, or three, garage spaces but upon inquiry, the real estate agent affirmatively represented to the purchaser that the unit came with the use of three garages. After the closing, the association notified the purchaser that she only had the right to use one garage space, and the purchaser initiated a lawsuit. The trial court dismissed the buyer’s lawsuit against the real estate agent finding that “there is no cause of action against [the real estate agent].”
The Fifth District Court of Appeal disagreed. The Fifth District rejected the real estate agent’s argument that there can be no fraud because the purchase contract included language stating that the seller could only guarantee title to one of the garages where the representation alleged involved exclusive use, not title. Moreover, the Fifth District noted that a separate paragraph of the contract expressly recited that the three garage spaces were included in the sale and, when the purchaser asked the real estate agent to clarify the discrepancy between the two provisions, the real estate agent affirmatively represented that the purchaser would receive exclusive use of the three garages.
Consultation with legal counsel is important before you enter into any real estate transaction, especially where you are relying on representations of a real estate agent that are not clearly and unambiguously addressed in the real estate contract. Rosenthal Law Group can assist you with all your real estate contract litigation matters.