Q. I recently purchased a co-op apartment. In both the broker’s listing materials and the sale contract, the maintenance fee was misstated by nearly $100. The maintenance had been increased in January, though the apartment was not listed for sale until May and the sale closed in August. Is there any recourse?
A. David A. Kaminsky, a Manhattan real estate lawyer, said that the most commonly used form for a contract of sale for a co-op apartment provides that the amount of maintenance must be correct as of the date of the contract and that this representation survives the closing.
What that means, he said, is that if a buyer discovers that the maintenance fee in the contract was wrong, he or she has a right to sue the seller. “But, pursuant to the typical contract, any lawsuit based upon a breach of that promise must be brought within one year,” he said.
It appears, he said, that the writer has a valid claim against the seller for violating the provision of the contract that requires accurate disclosure of the maintenance fee.
He noted, however, that determining the damages for the incorrect maintenance charge “might be tricky.” It is likely, for example, if the parties do not agree on an amount, that the courts would try to establish a “present value” of the damages by multiplying the $100 a month over a specific number of years. Perhaps, he said, the so-called “average” time a person stays in a home — seven years — might be a good starting point.