Tuesday, April 15, 2014

Buyer and Seller Beware

I'm often surprised to walk into homes people have recently purchased to discover a number of defects waiting for them to deal with. The number one issue is always a leaky or moist basement, closely followed by zoning or encroachment issues, then by hazardous materials in building products.

The first thought that comes to mind is why didn't the previous owner disclose the problem? This is followed by how can the previous owner or buyer be so unaware of how serious an issue this can be?

As a building professional, there are a number of scenarios I've seen that really made me upset for the owners of the property.  I remember one case in particular.

It was a young family who had purchased a property in a part of the City that is now being gentrified.  Their intention was to purchase the home, renovate the areas needing repair, and live there for quite some time afterwards reaping the rewards of their being the first into a neighbourhood in distress.

They showed me the existing kitchen addition they wanted removed and replaced.  Their hope was to reuse the foundation, extend the basement into the area under the kitchen, and make the kitchen the heart of the home.

When examining the existing structure it became apparent the foundation was non-conforming, as was the plumbing, wiring, and framing too.  A number of red flags were thrown.

Then I asked if they had a property survey, to which they replied, yes they did have one. I took one look at the survey, walked over to an area inside the kitchen, pointed at the floor and said "According to your survey, your property line is here, meaning, your neighbour owns this side of the room and all of that exterior wall too."

The reaction received was curious, in that the young mother picked up her child, sat down in a corner, and held the child up as a shield. The young father stood there looking at me dumbfounded as all the blood drained out of his face.

So begins their adventure in home ownership.

If I was a sociopath I would have signed them up for a renovation contract and bled them dry but instead I felt a great deal of sorrow for them. We discussed a strategy for them to pursue in order to become better informed.  What they needed to do was:
  • Have the state of the home (property, structural, electrical, plumbing, and HVAC) professionally assessed
  • Prioritize findings
  • Decide on how to move forward (move, renovate, or demolish and build new)
In Ontario, it's buyer beware, although there have been recent court decisions holding the seller and realtor accountable.  Here are a few to note:
  • Rampersad v. Rose, [1997] O. J. No. 2012 (Ontario Small Claims Court) 
    • A leaking basement case.
  • McQueen v. Kelly, [1999] O. J. No. 2481 (OSCJ) 
    • Another leaking basement case.
  • Stone v. Stewart, [2009] O.J. No. 1674 
    • Leaking basement again.
  • Riley v. Langfield   [2008] O.J. No. 2028 
    • A flood that had happened in the basement
  • Swayze v. Robertson, [2001] O. J. No. 968 (OSCJ)
    • Leaking basement
  • Gallagher v. Pettinger, [2003] O. J. No. 409 (OSCJ)
    • Hid evidence of moisture in the basement
  • Moore v. Page, [2002] O.J. No. 2256 (OSCJ)
    • Structural defects and water leakage
  • Kaufmann v. Gibson  [2007] O.J. No. 2711
    • Not being truthful about conditions of the home
  • Hunt v. 981577 Ontario Ltd., [2003] O. J. No. 2051 (Small Claims Court)
    • Ongoing obligation to report changes after disclosure was made
So, if you are in the process of buying or purchasing a property, take the time to educate yourself so both you and your family are protected. When looking at a home, forget about stuff like paint colour, whether or the carpet works for you, or if the kitchen looks dated.  That's emotional tug at the heart strings stuff and when the lights are out, meaningless.

If your roof leaks, your house encroaches into neighbouring property, or there's mold in your basement making you and your family sick, these are serious issues requiring significant time, energy, and money to repair.

Purchasing and selling property is a business decision and you need to be informed about what your obligations are to both yourself and family as a buyer or seller.  Be safe. Be aware.
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