The Window Is Too Small and I’m Being Sued – Why ?

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Last Updated: May 4, 2021

Why would an buyer, seller or agent care about the size of a window ?

The answer relates to safety.

Can you just imagine this scenario

As a great agent, you point out that there have been beautiful new dual pane, vinyl clad windows installed in the home.

When the owners put in the new windows, they didn’t want too tear out the old window frames or damage the siding, so they did a retrofit, where the new windows would just set inside if the old window frames. That way they didn’t have to damage the siding or disturb the the existing water proofing around the window area. A win – win, they thought. They felt there was no need for a permit and the new windows would just set inside the existing frames.

Naturally, buyers love having energy saving beautiful windows, as you pointed out.

The buyers buy the house and are so happy.

Then they discover

The bedrooms do not have the proper fire egress (because of the new size of the windows) and  that this can be very serious, should a fire occur and they get trapped in the bedroom.

When the new windows were set inside the old window frames, the actually opening of the window was reduces just a little; maybe just one inch on each side as well as the top and bottom. The windows still let in plenty of light and air.  Here’s where the problem begins.

You see

The building code requires that a bedroom have two ways to get out of the bedroom, should a fire occur. Naturally, one way is through the door that you enter into the bedroom. The second way may be though another door to the exterior or a window. However, there are certain requirements that this window must meet.

Fire egress windows should be openable without needing a key, special tool or special knowledge.

Fire Egress Window Opening Size Requirements

  • The bottom of the egress window opening can’t exceed 44” from the finished floor.
  • The minimum opening area of the egress window is 5.7 square feet. (ground floor 5.0 sq. ft. OK)
  • The minimum egress window opening height is 24” high.
  • The minimum egress window opening width is 20” wide


This could be a concern for a seller or agent

The reason involves disclosure of material facts that may affect “Value or Desirability.”

In court widows that fail to provide proper space for a person to get out of a bedroom in case of fire could easily be construed as a material fact.

As a seller or agent you are not expected to know the code or to measure a window, however,  you may be expected to recognize the fact that new windows were installed. You may have even pointed this out to the buyer, that there were new wonderful energy saving dual pane windows that had been put in; increasing the value of the home.

Building Department Permits Required

The question is ?

Did you disclose that you don’t know if proper permits were obtained. If you didn’t disclose this, then under some circumstances the new buyer may claim in court that he and his family is now living in bedrooms that are fire traps, and that had you disclosed there were no permits or that you did not know. That he would have checked with the building department, discovered that there was no permit and would have had the windows checked for proper installation and size.

Therefore – he feels you should pay for this to be corrected.

This may cause the sellers to wonder if they have to bring the windows up to code. ( Read more – “Are sellers required to bring anything up to code? )


The Bottom Line

As a seller or a agent it would be wise to bring up the question of permits with a buyer through disclosure. Naturally, if there was a permit the size will probably be correct and there is little liability.

This is the type of information that we would want to know if we or our family were buying the home.

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