Top 9 FAQs
Question 4. I purchased my new condo from Developer plans and now that I have moved in the square footage is smaller than outlined in the plans. What can I do?
Most Agreements of Purchase and Sale for new condominium units contain provisions that protect a Developer in these situations. Such provisions may include that the square footage listed in a Developer’s drawings are estimates and do not form part of the Agreement and/or that the floor area of the unit may vary from that stated by a certain percentage. The Agreement may also provide the standard by which size calculations are made, including whether measurements are to be taken from the exterior wall surface or interior wall surface. If, however, an agreement does not contain such provisions or a difference in square footage is so substantive that a Purchaser, in essence, does not receive what he/she bargained for, the Purchaser may consider bringing a claim against the Developer for damages. In any event, recourse is often limited to a potential abatement of the purchase price from the Developer and negotiations with the Developer for such an abatement can be explored.
The best way that Purchasers can protect themselves is by reviewing (or having their lawyer review) the Agreement prior to signing or within the 10 day rescission period to evaluate the above-noted provisions and, if necessary, negotiate with the Developer for amendment(s) to the Agreement to provide more certainty with respect to the unit size. If the square footage of the unit is fundamental to the Purchaser, a clause setting this out should be included in the Agreement and may be helpful in advancing a claim for damages later on in the event of a breach. While the warranties provided under TARION do not cover discrepancies in square footage, there is no down side to listing such discrepancy among deficiencies at the pre-delivery inspection (PDI) and trying to have the Developer recognize and rectify same.