Buyer Beware: Defects That Home Sellers May Not Disclose

Beyond the granite countertops and hardwood floorboards, a home may harbour defects - some negligible, others serious. Under Ontario law, sellers are obligated to disclose certain defects while simultaneously within their right to remain silent on others. Our post this week looks at two major categories of defects and some reasonable steps that homebuyers can take to discover the kind of property they may actually be buying into.

Defects - Patent vs Latent

Patent defects are visible. Some are obvious - such as ceiling blotches originating from a roof leak. Or they may be discovered upon closer inspection - as in the case of hairline fissures between a basement floor and foundation wall. Since patent defects are detectible, a seller has no obligation to point them out. Cautious buyers must do their part, keeping eyes open and asking probing questions.

Latent defects are invisible to the naked eye. They could take the form of previous fire damage or a history of flooding. Once the damage has been repaired and affected areas are returned to a cosmetically normal condition, latent defects can be very difficult to detect without taking invasive measures such as breaking down walls and ripping up carpet.

Even so, a seller who is aware of latent defects need only disclose them if they pose a serious risk to the future occupants' health and safety - such as toxic mould or a fire safety hazard. If the defect does not make the property unliveable, a seller can choose to stay quiet.

Protective Measures -- Wise Steps For Wary Homebuyers

As a first line of defence, buyers are wise to work with an experienced and conscientious sales agent. Ideally, he or she will take steps to ask pointed questions of the seller, conduct research, inspect related documentation and alter the purchase agreement as necessary once defects are discovered.

Buyers may also request a Seller Property information Statement (SPIS) - a topic we've written about previously. This is a voluntary document in which a seller discloses defects. But since the information supplied is based on the seller's best knowledge and honesty, this controversial form has caused numerous law suits and should not be relied upon as a defects catchall.

Whatever disclosure is ultimately provided, prudent potential buyers engage the services of a home inspector - a skilled one. These technical experts can do some detailed investigative work on a property's major systems, pulling out clues that may strongly indicate such defects as faulty wiring, radon leaks and plumbing problems.

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