Buyers on hook if they miss obvious defects

I’m thinking about buying a house and I’m worried about defects. How do I ensure I don’t buy a property with serious defects?

The doctrine of caveat emptor, or buyer beware, generally applies in Ontario residential real estate transactions — with certain exceptions.

It’s your responsibility as a buyer to exercise your due diligence before making an offer on a property, So it’s up to you to ask the right questions and inspect the property carefully to ensure it’s suited to your needs. It’s also up to you to seek input and support from the right experts.

Work closely with your real estate salesperson who can help you examine the property during visits, offer ideas for doing your own independent research, and come up with questions to ask the seller’s representative.

And regardless of whether you’re buying or selling, I also recommend hiring a lawyer who is experienced and insured to practise residential real estate law early in the process. They will tell you that the law in Ontario makes a distinction between patent defects (problems with a home that are easily observed by the untrained eye during an inspection of a property) and latent defects (problems that are not easily seen and might not even be found by an expert such as an engineer, contractor, or experienced home inspector.

Patent defects are usually fairly obvious: a missing railing, visible cracks in a foundation wall, or broken stairs on a staircase, to give a few examples. The distinction between patent and latent defects isn’t always clear-cut in the real world, so sellers must make their own decisions about what to disclose to prospective buyers, with the help of their lawyer and knowledgable experts.

Since patent defects are often easily detectable, the seller isn’t obligated to disclose them to potential buyers, meaning it’s the responsibility of buyers to find them.

Still, it’s always possible to miss a problem during a visit to a property (or not know what to look for). You could also be a bit blinded by the things you really like about the home. So, buyers are well advised to hire an experienced home inspector and to make any offers conditional upon the successful completion of a home inspection — or other inspection that may be necessary to ensure the property meets your needs. Since a home inspection is a visual assessment of a property’s overall condition, and it doesn’t include poking holes in the structure to look behind the scenes, you may wish to also opt for specialized inspections, such as examinations for termites or mould.

If you have a question about the home-buying or homeselling process, please email askjoe@reco.on.ca.