## Facts

- Property owners hired a brokerage and its broker to list residential property for sale in Norwell, Massachusetts.
- The seller told the broker the property was zoned “Residential Business B” or “Business B,” though “Residential Business B” was not a recognized local zoning designation.
- Without verifying zoning with municipal records, the broker marketed the property (newspaper ads and MLS materials) as “zoned Business B,” and provided zoning materials at the property reflecting that designation.
- A hairdresser seeking a site for a six-station salon contacted the brokerage, told the broker his intended use, and received the MLS listing stating “Business B.”
- Relying on the broker’s written zoning representations, the buyer purchased the property using a standard form purchase and sale agreement containing an exculpatory clause limiting reliance to representations in the agreement or previously made in writing; no specific representations were listed under the clause.
- After closing, the buyer learned the property was actually zoned “Residential B,” which did not allow the planned six-station salon.

## Issues

1. Whether a real estate broker who affirmatively represents a property’s zoning designation owes prospective buyers a duty to use reasonable care, including in deciding whether to investigate zoning rather than repeat the seller’s information.
2. Whether an exculpatory clause in a standard form purchase and sale agreement bars, as a matter of law at summary judgment, a buyer’s reliance on the broker’s prior written zoning representations.

## Decision

- The court vacated summary judgment for the broker and brokerage and remanded for further proceedings.
- It held that a broker who makes representations about zoning has a duty to exercise reasonable care in making those representations.
- Where the broker’s zoning statement is based on information from the seller, whether it was reasonable to rely on the seller’s information is for the factfinder.
- It held the exculpatory clause did not preclude reliance on prior written representations about zoning.
- Because material factual disputes remained, the defendants failed to show entitlement to judgment as a matter of law under the summary judgment standard.

## Legal Principles

- A real estate broker who elects to make affirmative factual representations about zoning must use reasonable care in obtaining and communicating that information.
- When a broker’s alleged misstatement rests on seller-supplied information, the reasonableness of relying on the seller (and the adequacy of any investigation) is typically a factual question.
- Standard form contractual nonreliance language does not necessarily bar a misrepresentation claim where the clause preserves reliance on “previously made in writing” statements and the plaintiff alleges such prior written representations.
- Summary judgment is improper when disputes remain over the content of representations, the broker’s exercise of reasonable care, and the reasonableness of the buyer’s reliance.

## Conclusion

The court ruled that brokers who state a property’s zoning must act with reasonable care, and that a boilerplate purchase-and-sale nonreliance clause did not, at the summary judgment stage, defeat claims based on the broker’s prior written zoning representations; factual questions required trial-level resolution.


DeWolfe v. Hingham Ctr., Ltd., 464 Mass. 795, 985 N.E.2d 1187 (2013)