Seller Property Information Statement

Is a tool that would indicate any issues with a property. Filing out the 19 question standardized form may soon be mandatory for every sale, in Manitoba. Currently in Ontario, the 48 question form is not mandatory, but may soon be so.

Agents and real estate lawyers are concerned about this form, as it can open themselves and their client to lawsuits, claiming that information was deliberately hidden. Another concern is what if the form is filled out correctly but something else is known about the property and not revealed?

There have been about 50 cases in Ontario so far dealing with this form since its introduction in 1990s. The general prediction is more litigation may arise as this form is used more and more.

A link to this form is at

http://www.ottawastructural.com/pictures/orea.pdf

Buyer Beware?

Recent cases have shown why it is important to be frank and forthcoming about your property’s problems, during a sale.

A case in the midst of litigation, highlights the sellers duty. In this case, a sex offender in the neighbourhood, was not disclosed. Is this something that could have been discovered by the due diligence of the buyer? Well, not by a house inspection-anyway. This was information that the whole neighbourhood knew. The sellers claimed that it is a case of caveat emptor - buyer beware? It is most likely that the court will find against the sellers.

It goes without saying that owners of property with foundation problems, or constant floods should disclose the fact. Agents knowledgable of these issues also have a duty to reveal any problems, or both will be held liable to the buyer see Krwarchuck v. Scherbak

Another area where disclosure will be required is if the property was used as a grow – operations (known as grow-ops) -to grow or make drugs. These properties can have significant structural damage, and can be unsafe because of the use of bypassed utilities. Further, it may cause severe health problems through mould, or other chemicals used to make the drugs. Lobbying by the Ottawa Real Estate Board mandates the police to list the addresses of properties found to be grow ops

Another potential harm from a grow up can be the culprits coming back to claim weapons or money left on the property, which happened to a recent buyer.

These three examples show the type of information that the seller should disclose if known.

Recent Case – Enforcing Pet By-laws

In a recent case, before the Superior Court, an Oshawa condo board tried to enforce their pet by-law against a unit owner, Mr. Morton. The by-law allowed one pet, under 20 kilograms, and leashed to each unit. This rule was not always followed. Mr. Morton the defendant claimed that the condo’s by-law was selectively enforced against him, while other unit owners had more than one pet.

The condo board agreed that other units had more than one pet. The concern with Mr. Morton’s pets were that they were both over 20 kg in weight, and would be off leash, scaring and jumping up on people. Further, these pets had many complaints.

The by-law and section 117 of the Condominium Act, 1998 (Ontario) provides that no one is to allow a condition to exist or an activity to be in place either in a unit or in the common elements if it is likely to damage the property or cause injury to a person.

Even with the evidence of other units having more than one pet, the court found that the board was not selectively enforcing the by-law against Mr. Morton, but they concerned about the safety of all. The court ordered that the pets be removed within 10 days of the decision.

The case called Durham Standard Condominium v. Morton, 2012 ONSC 161 (CanLII) can be accessed by the following link http://www.canlii.org/en/on/onsc/doc/2012/2012onsc161/2012onsc161.html.

Home Security

To protect your valuables, you close and lock your door to your office, safety deposit box or home. In apartments and condos, we lock our unit’s door, but ignore the front door, the garage door, the propped open side door,to our peril. These are portals to our valuables. Residents, unit owners, managers, security guards need to be aware of the potential for loss or crime, when these areas are entered by persons or vehicles unknown.

No one likes to put someone on the spot, but a quick shoulder check or the closing of a propped open door, ensures everyone’s safety.

Renovating your condo – what does your by-laws say?

Relying on the condo board not enforcing a by-law because they did not challenge another unit’s renovations is a risk that should not be taken by an owner.

In a recent case relating to a Toronto downtown live/work unit, the unit owner subdivided her unit without obtaining prior approval from the Board. When the condo board objected, she tried to get retroactive approval, which was denied. The board requested that the unit be restored to its original condition, which was to be done before the owner objected. She claimed that other owners, who had done similar work, were not sanctioned.

In deciding against the owner, the court stated “the board has a statutory duty to make sure that the provisions of its Declarations are adhered to.” (para 42) Unless the decision is unreasonable the court would not interfere with the board’s decision. The court ordered that the owner return her unit to the original condition/layout in the builder’s plans.

Toronto Standard Condominium Corporation NO. 1549 and Cathy Chan (2011) ONSC 5547 http://www.condoreporter.com/Justice%20Frank_s%20endorsement%20released%20Sept%2022%2011.PDF%20-%20Adobe%20Acrobat%20Pro.PDF

So can I rent this condo unit?

Prior to buying a condo, review the status certificate for things that are important to you. As stated in an earlier post, pets, also find out if you can rent out your unit. The by-laws detail if rentals are allowed. Your lawyer and your real estate agent, should be made aware of any of your future uses or needs and should help you find a condo of your dreams.

Joint Tenancy or Tenants In Common

Prior to taking property with someone else, spouse (common-law, married, same-sex) or friend, decide how you wish to own the property. Joint Tenants- when one person dies the other owner, gets the entire property. With Tenants in Common, one owner can leave their share of the property to anyone they choose.

It is rare for the courts to break a joint tenancy, if the property is a matrimonial home. Other situations, where a joint tenant, decides to give their share to someone, that is not the other joint tenant, would depend on the fact situation.

Mark Weisleder, in the Toronto Star, has a great example of when a joint-tenancy was not broken. Here is the link http://www.moneyville.ca/article/1111043–know-your-rights-when-you-share-a-property