Buyer Beware: Rights of a Buyer When Purchasing A Resale Home

Overview

This article applies to the purchase of a resale home. Different rules govern the purchase of a new build. As a first-time home buyer who just entered the market about two weeks ago, I have a keen interest in knowing my rights if I end up buying a “lemon” or a “dud”.  In Ottawa’s hot market, where you pretty much can only get a house if you make a no-condition offer, I wanted to know what a prudent buyer should do before paying $150,000, $250,000, or more, over asking. What questions should I ask the seller before making an offer?  Does the seller have an obligation to disclose any information about their home? What value is there in a home inspection? What can I do if there is a problem in the home after the fact? These are a few questions that I intend to answer for you, who, like me, is a first-time buyer of a resale home.    

Buyers should be aware that, as a starting point, the principle of caveat emptor or “buyer beware” applies. This means that, generally, a seller is not required to disclose defects in a home to a buyer and a buyer should take steps to satisfy herself about the condition of the home before making an offer.  However, there are specific types of defects that a seller must disclose and the failure to do so may provide a remedy to a cash strapped buyer.

What information does a seller have to disclose about their house? 

A seller does not have to disclose patent defects. Patent defects are defects that are readily discoverable through the exercise of reasonable diligence.[1] The term “readily discoverable” includes those defects which would be discovered by way of a professional home inspection. Unless the seller conceals a patent defect or fraudulently or negligently misrepresents a patent defect, caveat emptor will apply and the seller will not be required to disclose the existence of that defect to the buyer. If a buyer discovers a patent defect, through a home inspector or through her own visual inspection, it is prudent to ask the seller questions about that defect to satisfy herself about the nature and extent of that defect. The seller would then have an obligation to respond to the buyer’s questions to the best of their knowledge and not misrepresent their answers.