The “truth” about property disclosure statements

53

Mark Weisleder-webBy Mark Weisleder

Basement flooding. Mould behind the walls. Cracks in the foundation. These are just some of the surprises that home buyers across Canada have discovered in their property after closing, which were not disclosed by the seller. I have reviewed many articles written by legal commentators who have taken the position that sellers should rarely complete a Property Condition Statement or PCS because of potential liability that may result. In Ontario, this statement is called a Seller’s Property Information Statement, or SPIS.

In order to properly understand these issues, we need to first review the law as to what disclosure a seller is legally obliged to make to a buyer when selling their property.

There are two kinds of defects; patent defects and latent defects. A patent defect is a defect that is obvious when you walk into the home; for example a broken window. The buyer cannot complain about this defect because they can easily see it when viewing the home. They are thus governed by the legal doctrine of caveat emptor or buyer beware, and have to accept these defects on closing, unless they include a clause in their agreement that the seller will repair the defect.

A latent defect is hidden and cannot be observed on a normal inspection. The law here is that if the seller knows about a latent defect that makes the home either uninhabitable by the buyer, unfit for the buyer’s intended purpose or dangerous, then the seller must disclose this defect to the buyer. In addition, the seller cannot intentionally conceal what would otherwise be a patent defect. Examples of latent defects that should be disclosed include a problem with the foundation, an illegal basement apartment or a serious basement or roof water problem that has not been repaired.

The real estate industry introduced property condition statements as a means for sellers to put buyers on notice of any physical problems with the property, to alert buyers and to provide buyers with the opportunity to make further inquiries when necessary. It states right on the form that it is not intended to be a warranty and the buyer must conduct their own independent investigation or property inspection. This is why almost every home purchase includes a home inspection condition for the benefit of the buyer.

When completing the statement, the seller is asked to respond either “yes,” “no,” “unknown,” or “not applicable” to questions such as, “Are you aware of any water problems” or “Are you aware of any structural problems.”

These statements have been completed by sellers for years in hundreds of thousands of real estate transactions across Canada, without any liability, especially when they completed the statement truthfully and to the best of their knowledge. In fact, in many communities across Canada, when the statement was not provided, buyers were suspicious that sellers had something to hide, and thus offered less money than they otherwise would have.

Yet there have also been cases where sellers who signed the statement were held liable for the buyer’s damages when problems were discovered after closing. In my review of most of these decisions, the judge determined on a factual basis that the seller either knew that what they were saying was false or had deliberately concealed a defect that was found out afterwards. It was not the PCS statement that got the seller in trouble. It was about not telling the truth when completing the statement. In other words, even if the statement was not completed, the sellers could still have been found liable as they knew of a serious latent defect that was not disclosed.

In some cases, filling out the disclosure statement can save the seller from liability. In the case of Gesner v. Ernst, which was decided in Nova Scotia in 2007, the seller had provided a PCS form to the buyer that indicated they had experienced water problems with the roof and had installed a new roof to try and repair the problem. The buyer did not investigate this further and it turned out after closing that the water leakage problem was much more serious and the home had to be destroyed. However, the buyer could not prove that the seller knew about any of these structural problems. The judge even commented that by answering “yes” on the PCS form about the history of water problems, the sellers had made proper disclosure and the buyers should have investigated further. Since they didn’t, they could not go after the sellers unless they could prove that the seller actually knew about the foundation problems.

I could sum up the discussion about property condition statements as follows: for buyers, it is Buyers Beware, for sellers, it is Liars Beware.

However, there are many cases when sellers cannot complete the PCS form, such as when the property is rented and they have no personal knowledge about the physical condition, the seller is infirm and cannot understand the questions on the PCS form, or if the property is being sold by an estate trustee or by a bank under power of sale.

So what should buyers, sellers and salespeople do when a seller either refuses or their lawyer tells them not to sign the disclosure statement?

I wish to face the issue from a different perspective; namely, I would ask all sellers, do you want to get the highest price that you can for your property, or not? Let us take the example of a bank that is selling a property under power of sale, when a mortgage goes into default. Since the bank knows nothing about the property, they make it very clear in any agreement of purchase and sale that the buyer will be buying the property on an “as is” basis, and the bank takes no responsibility whatsoever for any defect that may be in the home. “As is” clauses will generally protect the bank from any liability for a defect that may be discovered by a buyer after closing.

For all buyers, if you were buying a home from a bank under these circumstances, would you pay anything close to the asking price, or would you offer a discount, based on the probability that you will have to pay for repairs after closing? My guess is that most buyers who are asked to accept the property “as is,” will not pay top dollar for the property and will expect a discount.

Similarly, when a seller says they will not disclose anything about a property, wouldn’t most buyers have the exact same suspicions, and thus offer less for the property? In many communities across Canada, this tactic usually creates a stigma on the property and buyers tend to offer less than for similar properties where disclosure is provided. Some sellers also try and insert “as is” clauses to protect themselves from liability. Yet there was a case when even a bank selling under power of sale with an “as is” clause was still held liable to the buyer after closing when it turned out that they had information about an environmental problem on the property in their files and failed to disclose it.

The bottom line is that while refusing to sign an SPIS form may provide a little edge in a potential lawsuit, it does not totally prevent a seller from being sued after closing, and the seller will likely obtain less money for the property than if they had provided complete disclosure.

When a seller cannot provide the SPIS statement, I recommend in these cases that the seller obtain a pre-listing home inspection report from a reputable home inspection company. The seller will have the opportunity to correct any deficiencies noted on the report itself. The seller should then give the report out to any prospective buyer. This will put the buyer on notice for any potential problems and will also demonstrate a higher degree of integrity on behalf of the seller, which should give comfort to any prospective buyer. The buyer should still make the transaction conditional on being satisfied with the results of their own home inspection report before committing to the purchase.

In commercial transactions, most buyers insist on complete disclosure in advance, especially regarding the rental income and the details regarding all of the tenancies. Owners who are forthright in providing this information typically obtain the best buyers. The same principle should apply in any residential transaction as well.

In addition, buyers and buyer salespeople should always ask sellers and the sellers’ salesperson point blank if there are any hidden defects in the property that they should know about, and make a note about anything that is said to you.

Sellers should be aware that the more complete and accurate their disclosure, especially of defects in your property, they will find that not only will their chances of being sued virtually disappear, they will also likely obtain a higher price for their home from a satisfied buyer.

 Mark Weisleder is a lawyer, author and speaker to the real estate industry. He practiced law for 25 years in private law firms and as in-house counsel and has educated Realtors since 1986 as an OREA instructor. www.markweisleder.com.

53 COMMENTS

  1. We recently purchased a home and the previous owners masked the smell of dog/kid urine in the carpets throughout the entire home. The neighbours have told us that they knew the dogs had peed everywhere and didn’t disclose in the discovery, but in fact masked it with cleaning agents. the problem is that the urine is soaked right into the wood and will never come out. it all needs to be replaced. Can I approach my insurance company to go after they’re insurance to deal with this disgusting issue?

  2. I am a home owner. My basement is finished and has kitchen, laundry, bedroom and everything you could call it an apartment but I never did. I never call it a suit/apartment and never rented it and I am basically against renting basements. However, now I want to sell my house and I am asking my agent not to put any phrase such as basement apartment, potential income, in-law suit etc. However, buyers may see the house as such and buy it for its finished basement. Am I legally responsible if they buy the house and get into trouble by renting it?
    I appreciate your comments.
    Thanks
    Saeed

  3. We purchased a home on Dec 1, initially our closing Date was Jan 29 however I got an offer on my home I was selling and they wanted possession Dec 1. The sellers of my new home were very accommodating and moved the dates. However this only left us 4 days to arrange the bank appraisal, have the well tested, and have the Wood stove WETT certified and we were unable to find a home inspector to get in there on such short notice so we relied on the disclosure statement from the seller. When we moved in there was a heavy snow pack on the roof, which is not un common for our area, we knew the roof was only 5 years old so it wasn’t an issue. However, when we used the wood stove it cause the snow to melt on the roof causing ice damning. As soon as it warmed up outside is when the ice started melting and when the water started coming in through the roof. I called my insurance company they sent a restoration company. They tear open the walls, and find copious amounts of existing damage and tell me the mold remediation that will be required will not be covered and the roof portion is not going to be covered and I need to call a roofer. I choose 1 of 10 in my local phone book make a call. The gentleman asks for the address and tells me, that they were the ones who installed the roof after the previous owners had this issue and that they have been back every year to try and fix it as the same thing keeps happening. I then speak to the man across the street who owns the store. And he too tells me that every winter when things thawed they had a water loss in the home and had the roofing company out numerous times to try and fix the problem. Now in their Disclosure statement, they clearly marked NO in the box that asks “Are you aware of any roof leakage or un-repaired roof damage” Do I have any hope or chance that I will win this if it goes to court?

    • In my opinion, this is yet another example of a concocted anecdote, by the unknown Advocate.

      Let’s start by looking at the dates given. “We purchased a home on Dec 1, initially our closing Date was Jan 29..” Apparently, the Purchaser’s of the subject Buyer’s existing home wanted a Closing date of December 01st (2015?) The inference being that the subject Buyer had their offer excepted when, perhaps on November 27th. (2015?). In most Provinces the standard “Title Search” timeline would be much longer than this period of time, and a shorter turnaround would require confirmation from the Lawyers involved — however, there is no mention of this. One would never agree to vacate their existing home ahead of knowing that they had Financing Approval for the property they were seeking to buy. The obscure dates or timelines are loosely offered to the reader to create a manufactured sense of urgency, to try and justify the reckless behavior of this imaginary buyer.

      Consider the following statement: “When we moved in there was a heavy snow pack on the roof, which is not uncommon for our area, we knew the roof was only 5 years old so it wasn’t an issue.” How did this imaginary buyer know the age of the roof — is the reader suppose to infer this information was on the “disclosure statement” and if so, why not just say so? One thing that the reader should be able to assume is that the imaginary home being purchased was a home and not a cottage and that the heat had been on to some extent, by a means other than a woodstove. A heated home that retains snow on its roof is usually an indication of a reasonable level of insulation and ventilation in the attic space!

      Consider the writers following statement: “However, when we used the wood stove it cause the snow to melt on the roof causing ice damning.” Presumably, this particular woodstove was located in the attic space, because that’s where it would need to be in order to melt snow on the roof of a home that otherwise has a fairly well insulated and vented attic space. This imaginary buyer makes no reference to anything being said about the levels of insulation or ventilation as being an issue in the imaginary subject home.

      Consider the writers following statement: “As soon as it warmed up outside is when the ice started melting and when the water started coming in through the roof. I called my insurance company they sent a restoration company.” An insurance company always sends out their Adjuster first, to determine whether there is an insured claim or not. Upon determining there is in fact an insured claim they would proceed to determine the extent of the damages.

      Consider the following statement: “I choose 1 of 10 in my local phone book make a call. The gentleman asks for the address and tells me, that they were the ones who installed the roof after the previous owners had this issue and that they have been back every year to try and fix it as the same thing keeps happening.” I suppose that one in ten odds aren’t too bad, but what are the odds that a roofing contractor would confess to being totally inept — if it meant they could incur some financial liability?

      Certain roof styles and pitches can be more prone to ice and water dam problems, but even then it usually takes a certain set of weather circumstances that may only occur once or never at all — when the roof is otherwise of basic good design and condition. It is however possible to have repeated problems (leakage) with a roof that otherwise appears to be fine. Added features to a roof may come into play, but the point of entry is usually determinable. Heat generated from inside a home shouldn’t come into play with proper levels of insulation and ventilation.

      Were this (JasBail — just bail) offering a real anecdote and a real restoration contractor was brought out to deal with a situation like the one depicted, the story would include a conclusion — in the sense of why this particular roof had this reoccurring problem, but we don’t have the benefit of such a conclusion here. The material used to solve problems like this is typically used in a limited sense as part of the standard shingling of a roof — the worst roofer in the business would know to just use more of this material!

      Speaking of odds, I’d say the odds are pretty good that the alias’ JasBail and Question are really: sock-puppet 1 (Jasbail) and sock-puppet 2 (Question) and share a common human.

  4. We purchased a home Dec1 2015. We cleaned and did some minor touch ups until we moved in Dec 14. On Dec 15 my daughter took a shower and we smelled and odour of septic. We had to open the windows and turn on fans. We looked to see where it was coming from and could not locate it. My other daughter took a shower a few hours later and the smell in the house was unbearable. We contacted out sales agent and she advised us to call the Septic Inspector we paid to inspect the system before our purchase. He advised us to call a plumber/septic professional. They came and had my husband do all kinds of digging around the tank to see if a pipe was broken under the ground. To make a long story short the plumber thought it may be a cracked septic tank so we had to hire another contractor to excavate the septic tank and weeping bed. The contractor found a broken pipe not connected to anything coming from the septic tank and the sewage was draining back towards the house into the weeping tile and coming into the sump pump inside the house. The ground had been previously dug up and the pipes had been duct taped and a flange around the pipe was smaller then the pipe that it was supposed to be attached to at one end. The other end of the pipe was completely smashed and attached to nothing. The contractor said there is no doubt in his mind that the previous owners didn’t know about this and he the ground had been dug up within their time of ownership in the home. Their SPIS stated there was no septic problems with the home. This home was not liveable and we have children and animals. It was Christmas time and all this was going on. One good thing is that it was thought to be a septic tank and found some broken pipes. We believe the people stopped using the water in the house and put it up for sale to get rid of it and hid the problems we encountered. The home was listed as having 2 working gas fireplaces too. I wanted them inspected and then the sellors told us the fireplaces were tagged and now not useable. We made an adjustment to the purchase price and still bought the home. This to me shows their character. From a legal point of view what can we do or do you suggest to do? My back yard is dug up and a mess due to the landscaping needs to be completed in the spring. More expense. We have tried to ask reator, septic inspector, contractor, lawyer (reception) and there just doesn’t want to be an urgency to help us beyond getting the problem found and fixed. We believe the previous owners should be responsible for the cost of the repairs. What should we do? Thanks for any suggestions.

    • Like some other stories that pertain to an undesirable outcome after buying a home using a “sales agent” this one lacks the important details to give it a proper level of credibility. For example, we must infer that “We purchased a home Dec1 2015.” means that the writer is actually saying they closed on the home December 01, 2015. The important details that would relate to when the subject Offer to Purchase was accepted and the amount of time that was allowed for so that the Buyer’s could complete their “due diligence” is missing from this story. Consequently, the details around what due diligence the Buyer may or may not have done, such as Building Inspections (notwithstanding septic inspector — which is still vague in terms of what was done) and Water Tests, is also absent — making it more difficult to evaluate the story, as claimed.

      However, let’s consider the following statement from KP: “We cleaned and did some minor touch ups until we moved in Dec 14. On Dec 15 my daughter took a shower and we smelled and odor of septic. We had to open the windows and turn on fans.” The foregoing, while not saying explicitly that the odor claimed was coming from the water running from the shower, would seem to want the reader to draw that conclusion — in any event the water would need to be the source. However, this also presumes that the Buyer would recognize the smell of sulfur that is present in some drilled wells. As no information is given in relation to any well-water tests, we will assume for the sake of argument that the odor claimed was septic system related.

      What I find particularly interesting here is that someone would purchase a home and not undertake to taste the drinking water — especially if the water hadn’t been fully tested at a Laboratory prior to the deal becoming FIRM. In addition, the Buyer is saying that they spent two weeks working in the home prior to moving in, and for some reason obviously didn’t drink any of the potable water from inside their new home — for if they had, they certainly would’ve gagged on it, if it was contaminated to the extent being suggested. Why didn’t they notice something filling up their water pails, even if they had been drinking bottled water? The story also lacks a conclusion in the sense of: what were the results of the water test that would’ve been done after they discovered the problem claimed, as they would need this for documented validation! There also isn’t any information regarding the type or location of the properties well.

      Consider the writers following statement: “They came and had my husband do all kinds of digging around the tank to see if a pipe was broken under the ground. To make a long story short the plumber thought it may be a cracked septic tank so we had to hire another contractor to excavate the septic tank and weeping bed.” I find it difficult to believe that both a Journeyman Plumber and an Excavation Contractor would neither think to simply have the septic tank pumped and, while the lid is open, simply look inside to see if the tank is damaged. By taking the aforesaid steps one can also see the exact location and depth of the pipes entering and leaving the septic tank — there is no need to do any excessive digging! In any event, the writer has said that the entire system was exposed and that broken pipes were discovered, so why wouldn’t they just repair the damaged septic system pipes (which isn’t very expensive) and close the field etc., back up, and hire someone to clean the well!

      Consider the writers following statement: “The contractor found a broken pipe not connected to anything coming from the septic tank and the sewage was draining back towards the house into the weeping tile and coming into the sump pump inside the house.” For sake of argument, if we accept that the well that was supplying the potable water to this mystery home was as aesthetically contaminated as the subject writer has claimed or implied, the sump-pump pit would be even worse because they’re not protected in any way similar to that of a well that supplies potable water to a home. Consequently the air quality in the basement should have been rank and unbearable — yet this wasn’t noticed, apparently!

      The writers story as submitted, seems to me to lack credibility and furthermore seems structured in a way to provoke sensationalist reaction. I can’t accept this as a legitimate anecdote given the details, as presented.

      Perhaps the submitter would like to elaborate, and tighten up all these loose ends, or just stay silent and confirm the validity of my doubts?

      • I never said anything about a well. I’m not sure how you came to that conclusion. We are on city water so no test was needed. We did have a septic inspector as stated. I invite you to re-read my post. I was hoping for suggestions rather then you to attack my details and making conclusions on your own. The pipes were just repaired but to do that they needed to expose them. You said to look inside the septic and see the pipes. These pipes are not even inside the septic. I said they were the pipes going to the bed. Which involves and excavator. My husband dug around the septic and the weeping bed. Not the well. You have focussed your main conclussionn based on what you have read into my concern. We have no well. I’m not too sure how many septics you have looked inside and found cracks. They are not like looking into a water bottle. Sometimes it’s process of elimination when calling a septic tank being cracked. Luckily they found a pipe. My main issue was the previous repairs that were done recently. The repairs were not compliant with any building/septic codes. I am looking for advise on sellors negligence and our way of recourse. Purchase/closed on Dec 1 2015.

        • Karen:
          Kudos to you for standing up to REM’s resident know-it-all.
          Here is my advice: launch a small claims court claim against the seller alleging “fraudulent misrepresentation”.
          You say that “…the contractor said that the ground had been dug up within their time of ownership of the home.” Get that statement in writing from the contractor including his reasoning for saying that.
          The cost to file a claim is minimal, and in many cases the defendant will offer to settle out of court prior to going to trial in order to avoid incurring legal and court costs.
          Maybe the know-it-all will chime in and tell you how to do it all.
          Good luck.

          • Thanks Brian for your support and information. This was the direction that we were thinking of going. The know-it-all does seem to comment on alot here and just wastes people’s time. His interpretation of “said writers” letters is terribly misconstrued. I don’t even know how he can have the conclusions from the letters that people post. Once again Thanks
            Karen

          • Karen:
            Did the septic system inspector whom you initially hired conduct a flow test of the system? Typically the inspection port lids are lifted off of the septic tank and the levels of effluent within both chambers are noted (should be at the bottom of both pipes). Then a bath tub faucet is turned on full force for twenty minutes whilst water flowing into and out of both chambers is observed. If the effluent level rises within the final outlet pipe significantly and takes a long while to settle back down to the original level (say, twenty or more minutes), then it may be surmised that there is either a partial blockage or the leeching field is “pooched”, unable to absorb any more moisture of a significant influx, and/or there is a break in the piping between the tank and the main leeching field distribution plenum pipe.
            I suspect that this test was not done. Therefore, you may also have the potential for a successful negligence claim against the inspector to go with your lawsuit.
            You do not need a lawyer to go to small claims court, but you do need iron-clad evidence to support your claim(s), including expert witnesses who will go to court with you in support of your position(s). This is certainly what I would do in your situation.</p.

          • Thanks Brian, I did hire a Qualified Septic Inspector who has been doing this for many years. We had the home inspector at the home doing both checks simultaneously. Most of our time was spent walking around with the home inspector. I was unsure at the time what the Septic inspector did and nor did I even know what they were supposed to normally do during this inspection. The invoice and inspection sheet was forwarded to our lawyers and I just received a copy of this inspection/invoice. It did not show anything about a flow test so I am guessing that wasn’t done either. We did have a licenced contractor as well as several of his staff that were present during the excavation that will support the findings. I appreciate your information and I don’t feel in anyway that you have criticized me (newbie) as said by Alan M . I am new to the forum but certainly not new to life. Thanks again. Karen

          • You are more than welcome Karen. I expect that by the time this, my response to you, is posted, there will be more invectives from REM’s resident wannabe-Einstein-clone invading this site with eye-pollution.
            I recently submitted a few come-backs to Al but they were stashed away in Jim-the-Editor guy’s special drawer of flammable materials. Too harsh on the old boy I guess, but other than saying “bull shit” I didn’t even swear!
            I hope that Einstein’s relentless attacks on anyone and everyone who posts herein does not dissuade you or others from continuing to comment. Apparently this is what is happening as some readers/potential posters decide that it is simply not worth the effort to engage with the expert-of-everything who appears to posses a bad case of miserableness. Maybe that’s what the “M” stands for.
            Nice to communicate with someone who is balanced and open for a change.

          • Brian,

            Likewise, Editor Jim sanctioned my initial response to you – apparently it must have lacked sufficient charm, or processed too much candor, but no matter!

            It should obvious to even the most gullible that were a consumer to have a, legitimate, bad real estate experience they would simply call the lawyer they had recently used to purchase their home, and said lawyer would most likely suggest that they should start by making a formal complaint to the Provincial Regulatory Authority, and upon the conclusion of that process one might consider potential litigation — simple. However, the aforesaid seldom seems to be the course of action that we hear about with these anecdotes, here on REM.

            While good fiction can be entertaining, disinformation certainly isn’t because the agenda is usually harmful to someone, or perhaps a group. The person who has submitted herein, as now Karen P., is suggesting that the foundation weeping tile system of her home was overwhelmed (immediately) as a result of one of her daughters taking a shower in the subject mystery home. The foundation weeping tile systems to which she has referred are actually designed to take water away from the foundation, and furthermore can accommodate all the rainwater that would collect on an entire roof that would be driven down the downspouts and into said very same foundation drainage system! A new section of sewer pipe suitable for between a holding tank and a dispersal field is worth less than twenty dollars — a little bit more than the price of a good roll of duct tape! Even though Karen P., has claimed that experts have visited the site and analyzed the overall situation, no problems have been attributed to the function of the foundation weeping tile system. Even the greenest of the green know that solids are retained the septic holding tank.

            Brian, for all the times you have contributed to REM and cast aspersions on the abilities of industry “newbies”, the question should now be: what did you really bring to the table more than them — when your exalted self chooses to embrace an anecdote, such as Karen P’s!

          • Al/Inspector Sherlock Holmes:
            Have you ever heard of a septic tank flooding to overflowing intermittently to the extent that the effluent leaks out of the tank at the cold joint where the pre-cast concrete top fits over the tank? This situation is often due to a partial blockage of the discharge pipe running from the tank to the header pipe leading to the leaching field. The tank only “overflows” now-and-then depending upon how much waste has been injected into the tank over a short period of time. This is the type of phenomenon that is revealed when a proper flow test is performed.
            Karen’s explanation is entirely plausible when one considers the above information. The below-grade ground between the tank and the foundation (sometimes about a seven to ten foot distance depending upon the age of the system) becomes saturated with smelly moisture over time and the excess then leaches downward into the foundation weepers (which in some areas with high water tables are always somewhat full) which then empties into an in-basement sump pit in homes not on municipal sewers. Thus the water-borne odour accompanying said effluent becomes noticeable once exposed to air as it evaporates in the sump pit. I have seen tanks periodically overflow along these lines twice over the last ten years at two different rural locations. So then inspector Holmes, there does exist a plausible explanation for Karen’s story.

          • Brian,

            Did I not not say the following: “Even though Karen P., has claimed that experts have visited the site and analyzed the overall situation, no problems have been attributed to the function of the foundation weeping tile system.” and then you respond, in part, with: “…and the excess then leaches downward into the foundation weepers (which in some areas with high water tables are always somewhat full)”

            In a properly engineered subdivision sump-pumps don’t exist. Even in rural settings where (in some cases) they can’t use the preferred gravity septic system, the basement draining system needs gravity (correct grade) to work properly. In older areas where the engineering was off, or the foundation wasn’t set properly, and consequently the basement drain doesn’t drain properly, in comes the sump-pump and those in the know, know where it has to drain. However, the role of the sump-pump should be to keep the water table away from the basement perimeter drain, so there isn’t any interaction between the two (inside and the outside).

            Brian, constipation is a form of blockage and it could be considered a phenomenon, if we didn’t know that drinking the right amount of beer will usually free a guy up. Blockage in a sewer line would be unusual, but probably not a phenomenon — the holding tank probably just wasn’t pumped in a timely manner.

            Any Excavation Contractor worth his salt knows about everything that has been covered on this subject herein, and yet Karen P., seems to need to get the whole story, here on REM, (Heino must be proud) plus she needed to be advised to call her lawyer (she recently dealt with) in order to get advice on how to go about getting a legal opinion! Is there a new definition for silly; I know Webster’s adds words now and then!

            Perhaps this is the kind of situation that makes the best sense to a: Real Estate Advocate, and that’s why it doesn’t make any sense to this: ordinary REALTOR.

          • Inspector Cluso:
            How many homes have you built, especially in rural settings?
            I have participated in custom building many on and off during my teen-age years working with my father who was a spec. builder. Those were the days when we (my father and I) actually built the entire houses ourselves with our own hands, sweat and blood from the foundations up (including weeping tile systems and sump pits) to final completion…also including complete septic systems which I sometimes dug by hand. I did it all with the exception of electrical and plumbing. Yes, I actually dug out and installed entire septic systems by hand. I also designed and built a couple of other new homes up in this neck of the woods more recently. I therefore speak from hard-earned experience, and not just from theory.
            How many conciliations have you conducted across southern Ontario working for TARION Corporation, often dealing with septic/weeping tile/sump pit/basement moisture and odour problems? I conducted approximately sixteen hundred.
            How many years have you worked as a tradesman (framing carpenter/steamfitter/plumber) both commercial (Toronto) and rural (Peterborough and surrounding area)? Make that over twenty years for me before originally getting into real estate sales.
            You can theorize all you want and paint your fancy word-pictures all you want from now until we all get fully sick of your know-it-all pronouncements, but I stand by what I know to be reality simply by experiencing same. I learned what makes things real estate and construction related by actually doing things, getting my hands dirty and by witnessing cause-and-effect when it came to determining the root causes of problems as they presented themselves to so-called experts (including building inspectors who were often proven to be wrong with their assumptions when I confronted them as a conciliator regarding deficiencies within properties that they themselves had passed and signed-off on as being acceptable building code practices within the parameters of the Ontario Building Code). Most of them never built a house, but they did pass their theory tests at school.
            I doubt that Heino is proud of what this site has become since you decided to become the Grand Pooh Bha of all things theoretical when in reality you are likely a typical sidewalk superintendent with his hands firmly stuck in his pockets watching others do the actual work..
            You brought up the subject of constipation. Do you speak from experience? Is that why the whites of your eyes are brown?
            I know that you feel that you must grimly win (in your own lonely little world) every argument at any cost. Most people go out of their way to get along with others; you go out of your way to piss off everyone, and you seem proud of that. It certainly sets you apart from the crowd. The floor is yours from here on in. I refuse to seriously duel with an unarmed grumpy old man (if you are indeed a man). I have had my fun with you up until now, but henceforth…forget it. You are no longer worth my time. And to think that you proudly stated herein a few months ago that “…people fear my words when I speak at the podium.” Seriously? You arrogance is stupendous!
            P.S.: Have another beer. Nawww; not good enough; it won’t do the trick; make it a six pack.
            Jim: If you post this (I hope you do) and thus you don’t deposit this, my latest fifteen-minute response to old miseryguts, into your special drawer of flammabIe material, I hereby promise to never waste my time responding to the said Inspector Cluso ever again. You have it in writing.

          • Brian M.,

            If you weren’t so busy revelling in your own legend, you would have clued-in by now that my background is a hands-on background growing up in a family owned General Contracting business that included commercial work. Your quips with childish references to “inspector cluso” are born out of a pompous mentality that no one else could have gone down a road similar to the one you have travelled down, or have done more than yourself. You need to get over yourself and stop underestimating people. You’re only a legend in your own mind!

          • I too almost said forget it when I received his first response. It’s a good forum for others to share there knowledge to help others. It’s unfortunate that he is allowed to continue his uneducated rants. His comments serve no purpose. I have read what he’s written on other people’s issues and he just attacks them without any merit. Hopefully Einstein go back and works on his theories and moves on to a different site. Thanks again

          • Regarding Karen P’s following statements: “The know-it-all does seem to comment on alot here and just wastes people’s time. His interpretation of “said writers” letters is terribly misconstrued. I don’t even know how he can have the conclusions from the letters that people post.”

            Karen P., is someone who came on REM holding themselves out as an innocent and unaware real estate consumer, in need of advice from the more experienced souls. And now, within the span of a few letters feels qualified to pass a complete judgement on my experienced opinions — not just with regards to her story, but on the others as well!

            In my opinion, such an aggressive comeback is far more consistent with someone who had a story to sell, as opposed to a story to tell!

          • Brian,

            I see REM as potentially being an important resource for industry members — when there is worthwhile technical information available to them. On any number of occasions (countless actually) you have made a repeated point (rant) of disparaging what the typical “newbie” brings to the real estate industry table in the way of usable, applicable, industry knowledge. Now, apparently, with your “know-it-all” snipe herein, you have also expressed your dissatisfaction with those who you feel think they know too much and share it too frequently!

            I don’t see the possession and sharing of knowledge as being akin to a: Goldie-locks and the Three Bears children’s story — where like the porridge the right amount of information is equal to something being at the right temperature. I have never sought to indulge my writing style (others have) — especially not at the expense of substance. By providing the comments that I have provided, reader’s are free to make their own determination as to which explanation makes more sense to them, and by default the process should increase their own level of awareness and or knowledge around the topic under consideration.

            Brian, you’ve criticized your “newbies” from the comfort of your chair, and now you seem to want to criticize me for passing along information that should be empowering to those very same “newbies” and others. At the same time, you’re not prepared to take me on by challenging any of the technical content of my statements. Consequently, what should a reader be left to conclude about your overall motivations? You seem equally bothered at the thought of those whom you have repeatedly disparaged (newbies) being enlightened, as a result of being exposed to the kind of experienced information that they need to rise above your low general opinion of them, as you pretend to be bothered by these same individuals being unenlightened!

            Perhaps you’ve just enjoyed your standard rant, a bit too much!

        • KP,

          In your initial submission you claimed that the septic odor appeared at the same time as your daughter commenced a shower. Since water isn’t supplied by way of a septic system what was the reader suppose to infer from your statement? Even if there were issues with an onsite septic disposal bed/ system the problem wouldn’t become manifest as a result of someone taking a shower because the drainage system in that immediate area has its own provisions for blocking out sewer gases or odors. In other words, the odor that you claimed should be less evident as a result of someone taking a shower — if the problem is unrelated to the water supply! Your clarification makes your story even more incredible!

          • Alan M….realtor, lawyer, plumber. Alan M can you tell readers who you are and why your opinion should matter? WHO R U?

          • HWR,

            It doesn’t matter who I am, and to the extent that what I have to say matters, is up to others to decide. I’m assuming that you think your opinion on things matters more than mine because you’re such a smart guy — well, that’s for others to decide also. HWR, your logic is quite astounding, as usual. You embrace your own alias because it is what you want, however, when someone else uses an alias whom you can’t debate successfully, your only fall-back position is to challenge that person’s use of an alias. HWR, you’re quite the boy!

          • If that were so, every accused man who declines to take the stand must be innocent, but really, people are better judged by what they do — against what they say they believe!

          • Your opinion doesn’t matter as a fact . Comments on whether my story is credible or not is of no use to me or my issue. I can assure you this is legitimate and wasn’t written to evoke people like you to make absurd accusations and outright stupid assumptions. Once again I was looking for recommendations not analysis. If you had read my whole story before analyzing it line by line then you could make an evaluation based on the whole story. BTW taking a shower, the water runs down the pipes and goes into the septic, then it makes it’s way down a pipe under the ground to a weeping bed. There are 4 pipes that drain this liquid down and and away from my home. If the main line leading to the 4 lines is damage and not attached to these 4 lines then the sewage from the septic is flowing into the ground approximately 15 feet or so from my home. The sewage drained now towards the home and ended up coming inside the home to the sump pump by way of the weeping tiles. So Einstein the smell was not coming up through the shower drain, never said that nor did I imply this. So further recommendation would be to read the whole story before jumping to conclusions

          • Karen P.

            I don’t know how someone could be accused of analyzing a story “line by line” and then simultaneously be accused of not basing their opinion on the “whole story”, but if that is how you apply logic, well – there it is!

            Regarding your following comment: “Once again I was looking for recommendations not analysis.” Applying ordinary reason, one should be able to appreciate that a rational person would not make recommendations prior to analyzing a situation — to suggest otherwise is to be argumentative.

            I was already aware that water usually runs down a pipe and not up, and I am obviously familiar with these systems. So let’s consider what you are saying with your current context, as it relates to: “On Dec 15 my daughter took a shower and we smelled and odor of septic. We had to open the windows and turn on fans.” which, if I understand you now, ties in with: “The sewage drained now towards the home and ended up coming inside the home to the sump pump by way of the weeping tiles.” but, at the same time I can only infer the aforesaid, as once again you haven’t been entirely explicit.

            Karen P, if you are suggesting that by your daughter taking a shower that it pushed material that otherwise should have been directed out to the septic field (but couldn’t be as a result of the broken pipe) back into the sump-pump pit thereby creating a fresh stink, then the same effect should have occurred whenever potable water was run from within the home: sinks, toilets — said items which you didn’t indicate that you hadn’t used in the two weeks you worked in the home, prior to moving in. Also, as you claim that this problem was preexisting, such an odor emanating from a sump-pump pit would only get worse with each passing day, and would stink with or without new water (grey or otherwise) entering the sum-pump pit! Of course, you haven’t confirmed the location of the sump-pump pit — which would now need to be located in the bathroom where the showers were taken, as a way to try and reason your story!

            Consider Karen P’s following statement: “The contractor said there is no doubt in his mind that the previous owners didn’t know about this and th the ground had been dug up within their time of ownership in the home”. Correctly written, I believe Karen P meant to say: The contractor said there is no doubt in his mind that the previous owners “did” know about this and the ground had been dug up within their time of ownership in the home.” Why would someone go to the trouble of digging up the ground and then not repair a section of sewer pipe that ran from the holding tank to the septic field — when the latter would be the easiest part of the job?

            While consumers may be denied certain details (in some cases, not all) as it relates to a home and its systems at the time of purchase, when problems come to light after closing and taking possession, this should change. Septic systems come in various designs or types depending on site conditions. Different septic systems have different life spans depending on the design. Septic system pipes don’t break spontaneously, and if they do break there is usually a perceivable reason. In many Provinces a “Septic Field Certificate” will be available for a field of a certain age — which will show the details and location of the field and the holding tank.

            Based on the information given, the information that wasn’t given and the way the information was presented, I don’t regard this “bad experience story” as a legitimate anecdote.

          • Correctly written… ??? That’s analizing. You are also speaking of me in third party. Do you realize you are writing to me?? Eg “I believe Karen P meant to say” and “Consider Karen P’s following statement”. You are writing to Meeee. One answer to you question to why would someone not fix the pipe. Now there’s the million dollar question. I can assure you the pipe was broken and covered up. Or is it a legitimate anecdote ???…Please don’t comment back. I find no value in your posts.

      • I also don’t like you stating that my issues/statement don’t seem credible. If I have left certain things out or are not clear then I would be happy to give you further details. I was not looking for you to review it like it was an essay and give it a passing or failing grade as if you were my prof. I was hoping for some “friendly” advise. To which you gave none.

  5. Hi Mark,
    I am in a great trouble and I will get some advice from you. I bought the property on August 14 and moved in on august 23, 2015. They had made the side entrance and I never new this was illegal. Yesterday the city officials came and said that this is illegal and there is no enough space between the neighbors and you should close is and bring to the original state. I paid the extra money because I taught I will get extra tenant income later . The officials also said that they where trying to reach the seller from July, 2015 but they never turned up.
    So what can be done in this matter. Thank you very much
    George

  6. Hi there. I purchased a home in Sept 2014 in Calgary Ab. The utilities were all off and the house had been vacant for sometime. The Real Estate agent said it had been a rental and utilities were disconnected due to non- payment. He assured me I need only call for a re-connexion.
    When I called for a reconnect, I was informed that the power had been physically disconnected (cut) and that I would require a new meter base and electrical panel. The Enmax agents had a difficult time locating the site ID. In all it took 2 months and $3000 to get power.
    9 months later when the spring rains began, the basement ( which had finished walls and unfinished floor) began flooding.
    A specialist told me there was most likely a dropped footing under a center bearing wall, where there is a dip in the floor and from which water is entering in the basement. Moreover, there are hairline cracks and high spots in other parts, suggesting there may be other structural damage.
    I’ve been advised to hired an engineer to trouble shoot the footing problem. Once that is rectified, the basement specialists can repair the water problem which appears to be entering at the damaged center wall and around 1/2 of the outside perimeter.
    Lastly, when the wash machine drained for the first time, it overflowed through the basement toilet flange, flooding the newly tiled floor. The main drain had been clogged.
    Guesstimates are from $15-40,000.

    Initially my agent tried to play the ” to bad, so sad for you” and tried to brush me off. I then wrote him a detailed letter outlining the problems, the false disclosure and the responsibility he, his agency and the Seller has. He then was more accommodating. He forwarded the email to the Seller. No response. He tried to call the seller and gets no response and has left a voice mail.

    How long do I have to serve the Seller? Should I sue the real stir and his agency as well or try to work with them?
    Presently, they are attempting to be cooperative, but very ineffectual, as though they are only attempting to appease me, but not really help me. Your advice is greatly appreciated.
    Thx, Mark

    • As with other bad experience stories of questionable merit, this one begins with a weak reason, suggesting as to why a full and proper Building Inspection may have been inhibited by special circumstances: “The utilities were all off and the house had been vacant for sometime.” and “When I called for a reconnect, I was informed that the power had been physically disconnected (cut) and that I would require a new meter base and electrical panel.” I am aware of only three reasons why a homes “mains” would be physically separated from the street lines: the home has been scheduled for demolition, the home was under major renovation, or the homes electrical panel was substandard and required upgrading and consequently the “mains” required physical separation. A homes electrical panel that required upgrading should be something that the average Home Inspector can remark upon, as it would be considered visible or patent. Furthermore, an electrical panel requiring updating is probably going to be attached to an above ground system, in which case one could simply look up and see that the wires had been disconnected. Perhaps if the Enmax agents had trouble locating the account, the home was scheduled for demolition, but then again such surely would’ve been brought up herein, were that the case!

      Consider the following statements by the writer: “9 months later when the spring rains began, the basement (which had finished walls and unfinished floor) began flooding. A specialist told me there was most likely a dropped footing under a center bearing wall, where there is a dip in the floor and from which water is entering in the basement.” Remember that the writer has already indicated that the home was purchased (closed) in September 2014. Spring rains begin in the Spring, but in Calgary the effects of the rains have caused wide spread flooding that has occurred in June, sometimes. The writer is attempting to attribute a Calgary problem or phenomenon as being a problem that is peculiar to the subject home, instead. Homes with leaky basements typically don’t need to wait for Spring to leak!

      Consider the writers following statement: “Lastly, when the wash machine drained for the first time, it overflowed through the basement toilet flange, flooding the newly tiled floor. The main drain had been clogged. Guesstimates are from $15-40,000.” Clogged drainage systems can be cleared; damaged drainage systems need to be repaired or replaced. The lack of clarity on this point makes the wide ranging estimate meaningless. Video camera inspections have long since eliminated any motivation for guesstimates regarding the subject of sewer drainage lines. What, if any, due diligence did this Buyer do prior to allowing this deal to become a FIRM sale?

      Consider the writer’s following statement:” I then wrote him a detailed letter outlining the problems, the false disclosure and the responsibility he, his agency and the Seller has.” The only false disclosure alleged and referenced specifically by the writer, is the following: “The Real Estate agent said it had been a rental and utilities were disconnected due to non- payment. He assured me I need only call for a re-connection.” The writer also refers to: “my agent”. From this it is unclear which agent (REALTOR) made the alleged “false disclosure” — listing or selling, or what exactly the seller may have represented at all! In fact this alleged bad experience anecdote avoids the topic of whether there was a: Seller’s Disclosure Statement, or a Building Inspection completed, at all, prior to closing.

      As the details are presented, I don’t except this as a legitimate anecdote.

  7. Hi there. My elderly parents just bought a smaller home. During the purchase and closure of the sale, my dad had a second broken hip injury so my mom was not in her full mind during this sale. She did not even think to have a home inspection due to everything going on. They are to move May 27th but got a bridging loan from the 20th to the 27th for painting etc. This past weekend we went in painting, brother in law was replacing a toilet when the project ran into a disaster. There is copper piping to the sink and bathtub which is unusable at the moment. My folks are retired, so not have $8 to $10,000 to hire a plumber to do the repairs. The money has been paid out as the deal closed on the 20th and the problem was not noticed until the 24th May.

    My question is do my parents have any resources to go after their lawyer, the sellers lawyer or the sellers themselves , or the real estate agent that got both sales.? Whoever is responsible. None of these bathroom issues were disclosed to my parents. They also have to fork out another $4500 plus for a new roof.

    • Your parents need outside assistance and the entire deal needs to be reviewed by a person who can legally challenge the practices ( or lack thereof ) of an agent.
      Your synopsis if true reveals incompetency on several levels if true all tied by to the agents involved in the deal ( both seller and buyer agents). You can be sure the offers were NOT signed with any the lawyer oversight.

      You can contact me through http://www.rosskay.com and I will review your case and provide followup. If this is true it is why buying or selling a home without using an Advisor should never happen in 2015. This advice will be FREE to your parents.

    • What would these poor folks do without the aid of a Real Estate Advisor, and what would the latter do without stories such as this?

      The first point to consider in this alleged anecdote, is that the subject Buyer’s are Elderly and are downsizing. Although they qualify for bridge financing they are, apparently, somewhat strapped for cash. And unlike the majority of people who downsize they couldn’t have been left with a residual amount of equity cash, neither.

      In keeping with other concocted anecdotes the story contains a reason or rationalization for the Buyer’s not performing a reasonable level of “due diligence” — which is attributed to “a second broken hip injury” to the writer’s elderly father (buyer). The intention is also to give the reader the impression that it doesn’t fall to the REALTOR/ Registrant to discuss an Inspection Clause and that it furthermore wouldn’t be remarkable to strike or delete an Inspection Clause — when in fact, in some jurisdictions doing the latter would require the clear expressed consent of the Buyer’s.

      Consider the writer’s following statement: “There is copper piping to the sink and bathtub which is unusable at the moment. My folks are retired, so not have $8 to $10,000 to hire a plumber to do the repairs.” Copper plumbing was one of the most durable materials used in home construction. For some reason we are not told what the problem is: is it a supply problem or a drain waste and vent problem. In addition the repair estimates as cited seem ridiculous — if the intention was just to effect some repairs and not renovate the entire bathroom! These Buyer’s also have a son-in-law who regards himself as being talented enough to replace a toilet (a task that is normally best left to a Journeyman Plumber) — so why wouldn’t he tackle the mystery job too?

      Consider the writer’s final claim: ” They also have to fork out another $4500 plus for a new roof.” There was no suggestion that the roof was covered with snow, when the home was purchased, as a matter of fact the home closed in May, but we’re not told when the Offer to Purchase was accepted.

      It would be a serious offence for a REALTOR/ Registrant to discourage anyone from seeking legal advice to a transaction (particularly if seniors are involved).

      There is a clear pattern to these concocted bad experience anecdotes that have appeared on REM. They all tend to have the same features more or less — which strongly suggests a common author.

      If someone wants to criticize organized real estate then just do it, but do it head-on without the disinformation. This underhanded approach is pathetic on a number of fronts, but it also confirms a certain fear on the part of our adversary to acknowledge those things we may be doing right –because to do so increases the difficulty of pursuing a challenge against us from a competing standpoint!

  8. Hi… I bought my house 2 years ago and I had a inspection done in June 2012. I moved in July 2012. Everything was perfect. The house was 7 years old when I purchased it. And my realtor did not mention any problems with the home. Winter came and I saw the major problem.. every window(12 windows ) and front/back door was covered in mold. No matter how many times I use mold cleaners and wash the windows it keeps coming back.. it’s 2 year now and winter, spring, fall. I have a mold problem. What should I do?? Can I still Sue them?? I have 2 young children. Who are always getting sick?? Please. Help me!!

    • Hi Mikey
      The law requires sellers to disclose hidden material defects.
      You should contact your lawyer.

  9. Hi .. Situation.. Recently purchased a home threw Realtor.. Now finding out the property is environmentally protected.. This was not disclosed in paper work, nor was it stated. They did not provide the zoning by laws nor did they say that the ministry has protected this property. Therefore any renovations, upgrades to the property I can not do as the red zone of the property which is 20 acres out of my 23. I can not touch, The 3 that is left I have to apply for permit from the municipal being $ per square foot and also a permit from the ministry costing $4000.00 then after paying such permits they tell you yes or no and either way they money is spent. Should this important information about the property been disclosed? Doesn’t a person have the right to choose then whether they would purchase or not as then they would be aware of environmentally protected? Thanks.. Stuck in a Rut.. Ontario Canada..

    • I would ask the question, Why did your Lawyer not discover this when he checked the zoning on the property during title search?
      When I list a property I always make sure zoning on the property is checked.
      Sincerely,
      Rita Giglione, Broker of Record
      Green Pine Realty Ltd.
      http://www.ritagiglione.com

    • Dear Stuck:

      If you were in a contractual Buyer Agency Relationship with a Provincially Licensed sales rep/broker, in any province in Canada you are legally protected and you sales rep and their brokerage could be sued for damages. If you answer YES to any of these questions you should contact your lawyer or at least consider small claims.

      1) Was a Buyer Agency Agreement signed at any time?
      2) Did you discuss renovating or additions at any time during your home search process with the REALTOR you purchased your home with.
      3) Did your Agent imply to you or tell you, whether through their actions or words they were qualified to sell you an Acreage Property?
      4) Did your Agent fail to recommend that you purchase Title Insurance?
      5) Did your Agent fail to obtain and review a current survey and use it to compare against properties designated to be in Green Zones?
      6) Did your Agent fail to visit the local Municipal building department on your behalf?
      7) Did your Agent fail to place conditions in your offer that stated there were no restrictive covenants to the property outside of the standard subdivision covenants?

      Truth be told about 60% of the agents out there, I would never trust to handle my real estate transaction. Another 15-20% I would probably simply not choose because the remaining 20% are simply the best in the industry and can be contracted for the same cost, in the end saving you $1000’s.

      The sooner Consumers start making wiser choices in who they choose as their agent, the sooner they will start saving more money in one way and many others.

      “I stand by my Comments!”
      http://www.rosskay.com

  10. Our neighbours house is on the market and the owner of the property had dumped her boyfriends body ashes in the flower bed against the house. When the owner of the property passed her step daughter dumped her step mothers body ashes in the same place. I notified the agent who was not aware of this unique situation and now it must be disclosed to the potential owners.

  11. I purchased a home 3 months ago, and have had nothing but problems.
    There was no PCS form completed by the seller. I did have a home inspection done which proved to be of no value. The inspector missed 3 major things that have cost me money. One of the issues was a leak in the basement area where my family room is. I have massive amounts of mould in the drywall and carpet. I did have this fixed ( so I thought ) but, first rainfall and the water found another way threw the foundation ! The contractor who initially fixed the problem say’s this has been an ongoing problem for abit of time. He sealed the one area and the water found it’s way to leak threw along the same wall , the seller must of sealed the cracks and holes as they appeared not ever getting to the root of the problem. Now, I sit in a home which has so much mould in the family room, that I can’t even enjoy the lower level of my home. My son and I have experienced enough headache’s from this mould.
    The lady I purchased from had lived here for 35 years ! I am going to speak to the neighbours and question what they know about these leaks. Also the inspector should of seen the warped baseboards and water damage and alerted me !! I was told to take the Real Estate agent for the seller , the seller, and inspector to small claims court ……….what do you think ??
    thank you

    • Hi Donna:

      I’m sorry to read about your plight.

      What province are you located in?

      You don’t have much to lose by taking the seller, the Realtor and the home inspector to small claims court, all as named defendants for their each individually responsible parts in your claim. You can represent yourself, but you must be well prepared with documentation to back your every claim.

      If you can prove misrepresention, either negligent or fraudulent, with fraudulent being the preferred case as far as the seller herself is concerned, and if upon that base you can show documented financial loss as the result of that misreprersentation, you might have a chance at recovering some money from the seller through a court action. Sometimes the actual notification/service on a defendant of a pending court action will cause a seller so charged to free up some money in order to avoid a costly court case. Been there, done that.

      Regarding the Realtor, you can also name same within your claim, as well as filing a complaint with your provincial regulatory body for Realtors (Real Estate Council of Ontario, RECO) in Ontario, and file a claim via his/her Errors and Ommissions Insurance policy.

      Regarding the home inspector, typically they have a disclaimer within the body of their contracts releasing them form any liability for oversights, but allowing for the return of your fee only in the case of a successful challenge to their findings.

      Don’t let the “Caveat Emptor” (Buyer Beware) aspect stop you. That only applies to “patent” defects, those defects that a reasonable person ought to have seen during a pre-offer inspection of the subject property, as far as I am aware.

      Go for it, and good luck!

      Brian

      • Hi Brian, thank you so much for the guidance. I live in Ontario. Had a contractor here on weekend, am looking at $6,700.00 to repair the family room wall :( I do have pictures & video from day 1 of problems, my lawyer has been aware of all problems also from day one . Even the home inspector returned and said to the one problem ” oh I think I forgot to write that down ” I am going to pursue, I would of not purchased the home if I was aware of a mould problem.
        I am discouraged and very dissapointed but, I will pursue all avenues !
        A claim against the realtor with the provincial regulatory board will be filed first !! Guess I should of known when he remarked ” oh the stove is so clean hardly used and works well “……..this statement was proven wrong once i took possession and found the stove not to be working !!
        Thank you Brian

        • Hi Donna:

          You are quite welcome!

          I am currently working with a past client regarding his SPIS related lawsuit. Final arguments will be heard in late January next after having gone throught two full days in court.

          I would launch a lwasuit against the seller immediately, now that you have an estimate for repairs. The cost of filing your claim is minimal. She may decide to offer to settle out of court. This is what you want from her if possible. You should advise RECO that there is a court action in progress when you file your claim with them, and ask for an expeditious decision from them.

          Good luck!

          Brian

  12. Hi Amanda, hopefully the buyers will be represented by a Realtor familiar with your particular area and will due diligence on all that you mention including the all important soil testing given that a gas station previously occupied the site.

    If the buyer is a private buyer hopefully they’re aware of precautions they should take and questions they should ask. The unfortunate thing is I find most private buyers think that the beginning and end of purchasing a property is the amount they’ll save on the price – that is, the extent of their becoming informed is whether or not they can save a buck. Regardless, buyers sometimes run into or look to speak with neighbours and find out about undisclosed problems that way.

    Any problems that come up because of latent defects that should have been disclosed but weren’t will be costly to both seller and buyer. Don’t see why you would need a lawyer unless you intend on trying to stop the sale or boycott it which I think might not be in your best interests but it doesn’t hurt to ask a lawyer the very question. They may point you toward the city inspection route for by-law complaints.

    • In my Ethics seminars we often discussed your personal code and whether you would call someone for situations such as Kitty Genovese being murdered. Do you remember the song “Outside a Small Circle of my Friends”? At the least, most would use the unmarked brown envelope to the appropriate authorities.
      Merv.

  13. My neighbor is planning to sell her home. She tried to sell it to my husband and I but after some investigating we discovered some issues and could not take on the risk.
    The home is a duplex, previously a gas station with a single family dwelling below. It was converted without permits to two 3 bed 1 bath and laundry apartments. Our area is not zoned for duplexes. (I have a copy of the rural planning guide for our area) The septic system has not been changed to accomodate a to family dwelling. The lot size is half the required size tobring this up to code.
    I have told my neighbor about these problems as well as a few other fire code issues and a problem with her well. She plans to sell her home by owner in February and keep this information to herself. I don’t think it is morally right to sit and watch some innocent family buy this home and have their septic back up and be left with this huge monetary loss.
    Is there anything that can be done to ensure any buyer will be notified of these probles so that they can make an informed decision?
    Do we need a lawyer?

    Thank you
    Amanda

    • Hi Amanda:

      You should contact the Ministry of the Environment re the former gas station aspect of the property. Were the tanks removed along with all contaminated soil?, will be the issue here.

      The well may be contaminated by the tanks, soil and septic system…Ministry of Health.

      Zoning?…local municipal office.

      Lot size etc.?…local building department.

      Fire code issues?…local fire department.

      Speak to a lawyer first, and quickly, before moving on the above to cover your butt with the property owners. You will be engaging in damaging public dispensation of material facts relating to another’s property that is/will be for sale.

      Maybe you should alert all of the FSBO outfits in your area to see if they follow up on the info. when whichever lists the property.

      Due diligence in favour of the public interest is at stake here I say.

      The departing neighbour will be your neighbour no more, but the buyers will be your neighbour going forward.

      The departing neighbour has made you complicit in the planned cover up by declaring to you that the issues will be withheld from the public, with your hoped-for tacit consent, unless you untangle yourself from the mess, do something about it, and protect the public, not to mention your own reputation as a conscientious, professional, caring Realtor going forward.

      Regards,

      Brian

LEAVE A REPLY

Please enter your comment!
Please enter your name here