Short answer
Listing square footage is usually an estimate, and it often differs from the Assessor’s record and the city’s permit file. A gap by itself is not a claim. It matters when the extra space was built without permits, or when the seller or an agent knew the number was wrong. Then it can be a disclosure problem: a fraud or concealment claim against the seller, measured by what you overpaid, and a claim against the listing agent for MLS statements it knew or reasonably should have known were false.
The listing said 2,000 square feet. You paid a price that made sense for 2,000 square feet. Then, during escrow or a few months after closing, you look up the property on the Santa Clara County Assessor’s site and it says 1,640. Or the sun room that sold you on the house isn’t on the tax record at all.
Sometimes there is an innocent explanation. Sometimes the missing square feet are an unpermitted addition the seller knew about and didn’t mention. This post explains how to tell the difference, and what a buyer of a single-family home or condo in Santa Clara County and elsewhere in California can do about it.
Three numbers, three sources
- The listing (MLS) figure. The listing agent enters it. It may come from the seller, a prior listing, the tax record, an old appraisal, or someone’s tape measure. Most listings label it approximate and tell the buyer to verify it.
- The Assessor’s figure. The Assessor keeps building characteristics for valuing the property, built from its own records and the permits it learns about. You can look it up on the Santa Clara County Assessor’s property search. Work done without a permit often never reaches the Assessor.
- The permit record. The city building department (or the County, for unincorporated areas) keeps the permits pulled for additions, conversions and remodels. In San Jose, search the address on the city’s permit portal.
If you financed the purchase, there is often a fourth number: the appraiser’s measurement in your loan file. It is worth getting a copy.
Why the numbers differ
Innocent reasons: different measuring methods (outside walls versus inside, whether a finished attic or bonus room counts), rounding, old records, or a permitted addition the Assessor hasn’t caught up with. A difference of a few percent is common and rarely worth a lawsuit.
Reasons that point to a problem: a room addition, enclosed patio, sun room or converted garage built without permits; living space the seller finished without permits; or a listing number that was simply made up. A gap of several hundred square feet that lines up with one particular room is a strong sign the room was never permitted.
“The sun room isn’t on the tax assessor record”
This is one of the most common versions of the problem. A sun room, patio enclosure or back addition that doesn’t appear in the Assessor’s square footage usually means one of three things: it was built without a permit, the permit was pulled but never finaled, or the Assessor classifies the space differently. The permit history usually tells you which.
If there is no permit, the issue is bigger than square footage. California courts have long treated a known building code violation that a buyer can’t see as a material fact the seller must disclose. In one older case, a porch enclosed without a permit supported rescission of the sale (Curran v. Heslop (1953) 115 Cal.App.2d 476). The cost and feasibility of legalizing the space, or the risk of having to remove it, can be the real measure of what you lost. Jimmy’s post on unpermitted additions and conversions covers that side in more detail.
When a discrepancy is the seller’s problem
Most sellers of a single-family home or condo must give the buyer a Transfer Disclosure Statement under Civil Code §1102 and following, and the C.A.R. purchase agreement adds the Seller Property Questionnaire, which asks about alterations and repairs. (See Jimmy’s guide to the TDS and SPQ.) Beyond the forms, a seller who knows facts that materially affect value, and that the buyer can’t reasonably discover, must disclose them (Lingsch v. Savage (1963) 213 Cal.App.2d 729). An “as is” clause does not waive the statutory disclosures (§1102(c)).
The key question is what the seller knew. A seller is liable for nondisclosure only for what it actually knew, but that knowledge can be proved with circumstantial evidence where the seller must have known (RSB Vineyards, LLC v. Orsi (2017) 15 Cal.App.5th 1089). A seller who built the sun room, hired the contractor, or bought the house with the addition already flagged in an earlier inspection report is in a very different position from one who simply repeated a figure from the tax roll. The disclosure statute protects a seller or agent who passed along an error from a public agency that was not within their personal knowledge, if they used ordinary care (§1102.4).
Expect the seller to say that the county record was public and you could have looked it up. That is not a defense to fraud; at most, the public record bears on whether your reliance was justified (Bishop Creek Lodge v. Scira (1996) 46 Cal.App.4th 1721).
The listing agent’s duties
- Visual inspection. On a sale of a home with one to four units, the listing broker owes the buyer a reasonably competent and diligent visual inspection, and disclosure of what it would reveal (Civil Code §2079). The statute does not require the agent to search public records or permits (§2079.3), but a room that obviously doesn’t match the floor plan, or construction that plainly isn’t to code, is the kind of thing a visual inspection catches.
- What goes into the MLS. An agent who puts information in the MLS is responsible to anyone injured by it for statements the agent knew or reasonably should have known were false (§1088(b)). In Furla v. Jon Douglas Co. (1998) 65 Cal.App.4th 1069, the MLS listed 5,500 square feet for a house of about 4,300. The Court of Appeal sent the buyer’s negligent misrepresentation claim to trial, holding that “approximately” and the contract’s disclaimers did not defeat it as a matter of law. That was not a finding of liability, but it means a disclaimer does not automatically end the case.
- MLS disclaimers. Most listings say the square footage is unverified and the buyer should check it. Those disclaimers matter, and they can weaken a claim based on an innocent mistake. They carry much less weight where the agent knew the figure was wrong or that the space was unpermitted.
- The two-year clock. Claims against the seller’s broker under the inspection statute, including negligent misrepresentation, must be filed within two years from possession, which is the earliest of recording, close of escrow or move-in, with no discovery rule (§2079.4; Loken v. Century 21-Award Properties (1995) 36 Cal.App.4th 263). That two-year limit does not apply to intentional fraud (Williams v. Wells & Bennett Realtors (1997) 52 Cal.App.4th 857).
- Your own agent. A buyer’s agent who passes along facts it knows are important to you, such as lot size, must verify them or tell you they are unverified (Salahutdin v. Valley of California, Inc. (1994) 24 Cal.App.4th 555). See suing your own real estate agent.
What to pull before you decide anything
- The MLS listing as it appeared when you bought, including photos and remarks. MLS systems keep listings for three years (§1088(c)), so ask your agent for a printout now.
- Your TDS, SPQ, the agents’ visual inspection disclosures, and every inspection report.
- The Assessor’s property record for the parcel.
- The permit history from the city (or County) building department.
- Your appraisal, from your lender if you don’t have it.
- Prior listings of the same house, which sometimes show a different square footage or the space before it was added.
If you are still in escrow, raise the discrepancy in writing before you remove your investigation contingency. Once contingencies are gone, your options narrow; see what a buyer gives up by removing contingencies.
What the claim is worth
Against the seller, fraud damages in a property sale are usually the difference between what you paid and what the property was actually worth when you bought it, plus certain out-of-pocket costs (Civil Code §3343). That is not the same as the listing’s price per square foot times the missing feet. It takes a retrospective appraisal of the house as it really was, including the cost and risk of unpermitted space.
Against your own agent, a fiduciary, the broader tort measure of Civil Code §§1709 and 3333 can apply (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226). For negligent misrepresentation, even by a fiduciary, recovery is still limited to out-of-pocket loss. Jimmy’s post on nondisclosure damages walks through the numbers.
Under the C.A.R. purchase agreement, most of these disputes go to mediation before anyone can file suit. If yours is headed there, see what a lawyer does for a buyer at a C.A.R. mediation.
How Jimmy can help
Jimmy Nguyen represents home buyers in Santa Clara County and elsewhere in California when the house turns out to be smaller than advertised, or the extra space turns out to be unpermitted. As both a real estate attorney and a licensed broker, he reads the MLS listing, the disclosure packet, the Assessor record and the permit file side by side, and he knows how the listing agent is supposed to handle a square footage figure. He can tell you whether the gap is an innocent measuring difference or evidence that someone knew.
Disclosure and agent-misconduct cases are the core of Jimmy’s California real estate law practice.
Write out what the listing said, what the county and permit records show, and when you closed — a few sentences is plenty. Email jimmy@lawjn.com or use the form below for a free case evaluation.