Incorrect floor area in sales brochure

When purchasing a property, the area listed in the sales brochure is an important consideration. The sales brochure is prepared by the estate agent appointed by the property’s seller. But what if it turns out that the stated area is incorrect? That the property you purchased actually has a smaller floor area than indicated in the sales brochure?

Calculating floor area

The estate agent calculates the usable floor area based on the NEN 2580 standard, which has been mandatory since 2021. This standard specifies how the usable floor area should be measured. Not all floor areas are considered usable. The standard is a lengthy document specifying various forms of area: gross floor area, net floor area, usable area, etc.

A certified inspector can verify and explain the correct application of NEN 2580. Factors include roof height, whether the space is accessible only via a hatch, the room’s function, whether the space is internal or external, etc. The sales brochure typically mentions the usable area, which can lead to discrepancies.

Incorrect usable area – who is liable?

If you can establish that the actual usable area is smaller than advertised in the sales brochure, what does this mean for your agreement? This depends on the agreement’s content. Most standard agreements exclude the seller from being responsible for discrepancies between the advertised usable area and the actual usable area.

Such exclusions are generally permissible. As a rule, the seller will therefore not be liable for the discrepancy due to breach of contract. Case law now firmly establishes that incorrect application of NEN 2580 constitutes a tort by the selling agent towards the buyer, as there is no contractual relationship between them.