Seller Property Information Statements (SPIS)

November 30th, 2015

Last month, the matter of Ménard. v. Parsons was ruled upon by the Ontario Superior Court of Justice. The trial lasted three days and the decision nicely illustrates the difficulties with the standard information forms used by Realtors in Ontario.

Citation: Ménard v. Parsons, 2015 ONSC 4123
COURT FILE NO.: SR 782-2012
DATE: 2015/10/19
L’Orignal, Ontario

This court case was the result of a failed real estate transaction. At the core of the litigation was whether or not the Seller had provided the Buyer with adequate disclosure of the fact that the home had been built on top of a discontinued landfill.

In 1996, the Seller acquired a property, in Enbrun, Ontario, from his father. An environmental assessment conducted at that time concluded that if certain precautionary measures were undertaken to the north half of the property it could be developed for residential use. It then listed several preventative measures that should form part of the development process. The most significant of the measures was to “install a clay barrier which would prevent the migration of suspected contaminants from the landfill material on to the north half of the property were residential development would take place.

In March of 1997, the Seller (and his father) installed the recommended barrier and he began to build on the property. The home was completed in four months. In the summer of 2011, the Sellers decided to sell. They tried selling it privately, at first, then listed it with a Realtor. The Sellers submit that they told the listing Realtor about the old landfill on the site. That Realtor passed away and the listing was passed over to another Realtor, in the same office on August 19, 2011. The new Realtor was not aware of the discontinued landfill.
On November 7, 2011, the Buyers entered into an agreement of purchase and sale with the Seller, to buy the property. The transaction was scheduled to close on March 9, 2012.

Schedule A to the agreement of purchase and sale included a list of conditions including that the seller provide a “seller property information statement” (SPIS) that was in their possession.

At page 2 of the SPIS there is a paragraph entitled Environmental: (provide applicable additional comments). Question 1 under that paragraph stipulates: “Are you aware of possible environmental problems or soil contamination of any kind on the property or in the immediate area? e.g.: radon gas, toxic waste, underground gasoline or fuel tanks etc.” to which the seller indicated “unknown”.

Question 2 under that heading stipulates: “Are there any existing or proposed waste dumps, disposal sites or landfills in the immediate area?” to which the seller indicated “yes”.

In 2011 there was a notorious battle in Embrun and the surrounding area concerning the prospect of a chemical disposal site being constructed and the issue was constantly in the local news. They Buyers had assumed this was the reason for the “yes” on the SPIS.

On November 17, 2011, a test of the well water located on the property indicated significant evidence of bacterial contamination of the water, making it unsafe to drink. This was resolved by installing a water filtration system.

On February 21, 2012, the Buyers were contacted by their real estate lawyer who advised them that part of the lot was built on top of a discontinued landfill site. After seeing several letters and an engineering report that confirmed the contamination, the Buyers advised their lawyer not to complete the transaction.

The Seller later sold the property for $100K less and sued the original Buyers for breach of contract, wanting them to pay the difference.

In the ruling, the judge mentions a whole bunch of legal precedents, concluding that:

On the facts of this case negligent representation has been made out. The duty of care existed between the plaintiff and defendants based upon the preparation and providing of an SPIS in the context of a real estate transaction. He was required to “speak truthfully and completely about the matters raised in the unambiguous questions” (Krawchuck at para. 77). He did not.

The defendants relied on these representations by going forward with the transaction and incurred special damages as a result.

In this case, the court awarded the Buyers counter-suit and the Seller had to pay the Buyer:

$508.50 for the home inspection
$565 for the inspection report
$904 for the water inspection report
$2,042.88 in lawyer’s fees for the failed real estate transaction

In Praise of Sagittarians

November 26th, 2015

In honour of Fabian's birthday, I thought I'd do a blog piece about the virtues of Sagittarians. A Sagittarian is someone born under the 9th sign of the zodiac. The sign is generally represented by the archer.

Astrology is thought to have started in early Egypt and the Babylonians are credited with being the first to chart stars. For the first couple of thousand years, astrology and astronomy were actually the same science. These studies were introduced, as a science, to the Greek culture by Aristotle sometime in the 4th century B.C. Early astrologers linked 12 constellations to the progression of the season and 12 lunar cycles, then assigned them with different names of people or animals. The names we currently know and use are thought to have been created by the Romans.

Some people believe that, properly charted, astrology reveals a lot about personality, trends and possibilities. Others, not so much. Some very influential people have reportedly made some very serious decisions on the basis of astrology. But, as usual, I digress.

Sagittarians like their freedom to roam. They're optimistic, energetic, charming and sociable. They love change. Sagittarians speak really fast and are outspoken about their beliefs, sometimes to the point of exaggeration or stepping close to the bounds. Straight forward and curious, Sagittarians are usually pretty athletic, too. They're clear thinkers and they see the whole picture. Sagittarians are generous, they enjoy making AND spending money. They put a lot of value into sincerity and honesty.

We won't discuss the fact that Sagittarians can be a little self-indulgent or that they procrastinate or how they can be argumentative or blunt. I think it's more a matter of "what you see, is what you get" when it comes to a Sagittarian.

Beautiful Bancroft Boomers

November 19th, 2015

I did a little research to find out exactly what constitutes a boomer... and I was surprised to discover that the term was coined in 1974. I don't know why it surprised me, but it did. Apparently, the brain-child of some marketing guru, the label has been the topic of many discussions- at least in my experience.

My mother, for instance, has always grumbled when I have lumped myself into the boomer category, contending that I'm not old enough. Well, today I shot that argument all to h-e-double hockey sticks. While I found there is some controversy about the actual timeline for boomer-dom, 1958 clearly qualifies. Some say that it applies to births between 1940 and 1960, others between 1946 and 1964 and still others, between 1945 and the late 60s.

So what does it all mean? Sociologists try to attach some significance to what was going on during our "coming of age"... which is to say around our 20s. Studies talk about how the "Post War" or "After WWII" or "Second World War" generation were the product of a respect for top down management hierarchy, the post-war economic explosion and the importance of the nuclear family (dad at work, mom at home). Why were these values important? Experts contend it is a result of growing cold-war tensions and the desire to create comfortable, close, familiar units in which people felt safe and secure.

Most studies that I looked at said that the age group born before 1940 (or 1945) had the greatest opportunities as far as employment and equity building.

The next group to come along were what is generally categorized as the "Baby Boom" . A couple of studies that I looked at, break the baby boom into two categories... saying the first wave of Baby Boomers were born between 1946 and 1954 and the second between 1955 and 1965. Some call the second wave "Generation Jones".

Evidently, the first group of Boomers frame their lives around the Kennedy assassination, the Martin Luther King assassination, the civil rights movement, and either serving in or protesting the Vietnam war. Boomers were affected also, by the moon landing, the Watergate scandal and the arms race. Later boomers had to cope with the emerging AIDS epidemic. All boomers have grown up lacking confidence in government. Us late-boomers had a bit of a harder time, according to experts... because that big group of early baby boomers grabbed up all the best jobs and opportunities. So, there's a huge discrepancy in the boomer financial arena, apparently.

But enough whining.

The good news is that employed boomers are now considered senior personnel and many are preparing to retire... it's just that retirement has a different feel for boomers than it did for the post WWII folks. The post WWII folks were happy in retirement communities, where everyone had more or less the same little modular home in the same development and someone looked after the maintenance. Each little subdivision had a community center where residents could gather and play cards or line dance. This type of retirement suited the generation who wanted to conform, be close and feel safe. The Boomers have always been more independent and they aren't prepared for the cookie-cutter life in retirement, either.

That's what started this whole blog.

Years ago, when I'd go to cottage shows in the city, people hadn't heard of Bancroft. They'd heard of Haliburton, they'd heard of Algonquin Park... but hardly any knew of Bancroft. Things are changing... I've noticed a lot more "boomers" looking at Bancroft. Bancroft has a lot to offer boomers... I ought to know... I've made a nice life here, since 1992.

The Process of Buying and Selling Property Keeps Getting More Complicated

November 13th, 2015

Home ownership in Ontario may soon become more costly. The province is reviewing some important elements of the municipal legislative framework and possible amendments to the Municipal Act will give every municipality (outside of Toronto- where it has already been introduced) the authority to charge a Municipal Land Transfer Tax. If enacted, the provision could come into effect as early as next spring.

Municipalities are struggling with existing revenue tools to meet infrastructure needs and most authorities feel it is only a matter of time before they levy the tax. Ontario Realtors have been fighting this tax since its introduction in Toronto, seven years ago but the Ontario Real Estate Association (OREA) says that municipalities are going to be allowed to proceed to add the MLLTT and soon, Ontarians will be paying the highest land transfer taxes in all of North America.

In Toronto, the tax was implemented 2 years after the city was granted the authority to charge it. According to OREA, over the past five years 38,227 Toronto housing transactions were not completed because of the tax. Prices in the city are also said to have fallen, slightly, as Buyers have adjusted their offers, accommodating for the increased closing costs.

A recent Global New article illustrated the near doubling of land transfer fees, stating, "Those looking to purchase a home for $445,000 will therefore have to pay $5,375 in the Provincial Land Transfer Tax and an additional $4,625 for the new MLTT."

OREA has launched an online poll, urging the public to oppose the MLLTT. If you wish to voice your concerns, visit: http://www.donttaxmydream.ca/helpstop.html

News Reports: December 1st: We welcome the news that was delivered this morning by Ted McMeekin, the Minister of Municipal Affairs and Housing, when he informed the legislature that the government will not give municipalities the ability to charge a municipal land transfer tax (MLTT).

618 Detlor Road

November 11th, 2015

Say yes to the abundance of nature & live the lifestyle you`ve always dreamed of. An enduring classic, this extraordinary 4 bedroom log home exudes charm, warmth, timeless tradition & a simpler way of life. Relax. Listen to the sound of silence, nothing to break it but the breeze, rustling through the leaves & deer, as they roam free, following the trails through the surrounding forest & stopping at the pond. Enjoy a guaranteed income, nestled amid the rolling hills, close to lakes & rec trails & set, securely, on 94 mostly-treed acres, including 100`s of sugar maples. You`re sure to be enchanted by the natural beauty of the landscape. Here, the sunsets are breathtaking. Perfect for welcoming friends and family. This is the ultimate retreat and yet, you are only minutes from all amenities. Offered at $429,900

For more information on this spectacular property, email Jody bancroftrealestate@yahoo.ca or Fabian barrysbayrealestate@yahoo.ca or call us direct 613-639-1288