who only discover defects in their new property
Homebuyers who only discover defects in their new property after closing the deal
may still be able to sue the vendors, says Ottawa paralegal Amri Murray. Murray,
principal of AJ Murray Legal Services, tells AdvocateDaily.com that she expects a
of cases to arise each fall as homebuyers move in following the peak deal-closing
months of the summer, only to uncover previously hidden faults in their new
But not all claims are guaranteed to succeed, she says,
explaining that courts will be guided by one of the oldest legal principles around:
caveat emptor, or “let the buyer beware.”
It’s your responsibility as the buyer to do your
due diligence, Murray says.
“If there’s a huge visible crack in the wall or
some significant problem that you could — or should — have easily discovered by
simply taking the time to really look at the property before buying it, then the
likely to go against you.
For that reason, she says it’s crucial for buyers to hire a
good home inspector to do a thorough check of the premises before committing to any
Don’t just go for the cheapest person. Make
sure it’s someone who is experienced, understands the role, and can pick up any
problem that is discoverable.
The situation changes when the disputed problem can be
described as a “latent defect” or one that a competent inspection could reasonably
have missed, says Murray.
Without an agreement between the parties
covering latent defects, she says buyers will usually only succeed in court if they
can show that the seller was either responsible for the problem, or they failed to
issue to the purchaser, despite knowing about it in advance.
If it was not possible for the seller to
foresee the defect, then that’s something that could go against any lawsuit , Murray says.
She says alleged misrepresentations by sellers, which could
expose them to liability, fall into two camps: negligent misrepresentations, which
could be put down to carelessness, and more serious fraudulent misrepresentations,
which involve deliberate deception on the part of a vendor.
The threshold for proving fraudulent
misrepresentation is higher and more difficult to meet , Murray says.
She says the nature of the cases makes them a good candidate
for small claims court since the cost to repair many defects falls within its
$25,000 limit. “On occasion, it can go over that amount, depending on how serious
the problem is,” Murray says.
But she says courts at any level will not entertain claims that are not “material” to
the contract between the parties.
I’ve had people call me to see what their
options were because a room was painted the wrong colour, and I have to tell them
it’s not serious enough. It has to be material to the purchase. Murray says.
In general, the more time that passes between a sale and a lawsuit, the smaller the
chance of success, Murray says.
“In one instance, a person was trying to sue
over a defect 10 years after they bought the house. With that kind of interval, the
seller will have a stronger argument that the defect is attributable to expected
,” she says.