Is the real estate agent liable for incorrect information in the property listing?

Promises vs. Reality: Analysis and Facts

The role of the exposé and the disclaimer

understand the issue of real estate agent liability , you first need to read the fine print. Almost every property listing contains a sentence like: "All information is provided without guarantee and is based on information from the seller." This disclaimer is the first line of defense against real estate agent liability . Legally, this means: The agent does not endorse the information provided. They act as a messenger. If the seller tells them, "The heating system is from 2015," and the agent records it accordingly, the agent is generally not liable , even if the heating system is from 2005. The agent is entitled to rely on the accuracy of their client's information as long as doubts are not obvious. Therefore, there is no automatic liability for every typo.

Duty of care: When does a broker's liability begin?

However, the disclaimer is not a license to act without due diligence. A professional real estate agent has a duty of care (Art. 398 of the Swiss Code of Obligations). If they breach this duty, the agent's liability becomes relevant. What does this mean in concrete terms? A real estate agent must recognize obvious errors .

• Example: If the property listing states "solid construction," but the house is clearly a prefabricated wooden house, the real estate agent cannot evade responsibility. The agent's liability applies here , as a professional should be able to recognize this difference.
• Plausibility check: Real estate agent liability often arises from negligence. The agent must check documents for plausibility. If the land register states 100 m², but the property listing states 150 m², the agent is acting negligently. In this case, liability for the real estate agent is very likely.

The liability of a real estate agent therefore applies if the error was recognizable to an averagely competent real estate agent and he accepted it without checking it.

Intent and malice: The sharp sword

The situation is quite clear in cases of intent. If the real estate agent knowingly provides false information to force a sale, the agent's liability is unavoidable. For example, if they conceal known mold behind a wardrobe or claim that a building permit exists for a conservatory, even though they know it has been denied, they are acting fraudulently. In this scenario, no disclaimer protects them. The agent's liability then covers full compensation for damages. This can mean rescission of the purchase agreement or a reduction in the purchase price. However, the hurdle for such liability is high: you must prove their malicious intent.

The difference between a real estate agent and a seller

Buyers often confuse the real estate agent's liability with the seller's warranty. Generally, the seller is liable for the property being free of defects. The real estate agent is liable for their services.

• Is the roof leaking? -> Seller's liability (unless excluded).
• Did the real estate agent claim the roof had been recently renovated when it was actually old? -> Possible liability of the real estate agent for providing incorrect advice.

For those who have suffered losses, it is often easier to pursue a claim against the seller. Liability of the real estate agent is usually the second course of action, only when there is "nothing left to recover" from the seller or when the agent is solely responsible for the error (e.g., a transmission error).

Square meter lie: A classic case of real estate agent liability

real estate agent liability often becomes apparent. Since living space is a key factor in determining value, the agent must be precise. If they measure the space themselves and make a mistake, the agent is liable . Do they blindly accept incorrect architectural plans without even basic verification (e.g., counting the basement as living space)? Here, too, the agent can be held liable. Courts rule strictly on this: anyone presenting themselves as an expert and citing floor area figures must stand by their claims. Real estate agent liability for discrepancies in floor area is one of the biggest risks for intermediaries.

Special situations: Contaminated sites and building law

Real estate agent liability is often relevant when dealing with land, particularly regarding environmental contamination or building permit status. If an agent writes "fully developed and ready for immediate construction" despite a building freeze being in place, this is a classic case of real estate agent liability . They are obligated to verify such publicly available information. Failure to do so constitutes gross negligence. In such cases , real estate agent liability often covers the costs of wasted planning or the diminished value of the land.

How to protect yourself

Don't blindly rely on the property listing. To minimize the risk and the need to sue the real estate agent for liability :

• Check documents: Request original documents (land registry extract, building plans, insurance policies).
• Include important details in the contract: Key features (e.g., "living space 140m²") should be included in the notarized purchase agreement. This places primary liability on the seller, which is often easier to enforce than the real estate agent's liability .
• Follow-up questions: Ask the real estate agent in writing: "Did you measure the area yourself?" His answer may be important later for the agent's liability .

Statute of limitations and burden of proof

If you've suffered a loss, don't wait. Claims arising from a real estate agent's liability can expire. Furthermore, the burden of proof lies with you. You must prove that the information provided was incorrect, that the agent breached their duty of care, and that this resulted in damages (causation). Without this proof, the real estate agent's liability claim is invalid. Legal expenses insurance is often helpful in enforcing a claim for damages against a real estate agent .

Conclusion

The question "Is the real estate agent liable?" can be answered with a "yes and no." Generally, the disclaimer protects the agent from liability for simple errors in communication . They are not a guarantor for the property. However, as soon as negligence, inadequate due diligence, or even intent are involved, the agent's liability becomes very real. A real estate agent is an expert – and must act accordingly.

For you, this means: trust is good, but verification is better. Consider the property listing as advertising, not as gospel. Check the facts yourself. Should a problem nevertheless occur, the real estate agent's liability is your lifeline if the professional hasn't done their job properly.

Do you want to ensure that all information about your desired property has been verified and that all documents are complete? Loft offers you the digital platform to bring transparency to the buying process and minimize risks related to real estate agent liability .

Glossary

• Real estate agent liability: The legal responsibility of the real estate agent for damages resulting from incorrect advice, faulty property descriptions, or breaches of duty of care.
• Exposé: The sales dossier for a property. It serves to provide information, but is often legally non-binding, which can limit the liability of real estate agents .
• Disclaimer: A clause in the exposé ("information without guarantee") that attempts to exclude the broker's liability for information provided by third parties (sellers) .
• Duty of care: The legal obligation of the real estate agent (Art. 398 of the Swiss Code of Obligations) to act conscientiously in the client's interest. A breach of this duty This is the basis for the liability of brokers .
• Causal link: Proof that the error in the exposé directly led to the buyer's financial loss – a prerequisite for a successful claim for real estate agent liability .