Buying Resale - Visit the Property Before Closing

Rachel in Legal, HomeBuying

Most HomeBuyers do not bring the agreement of purchase and sale to their lawyer until it has already been signed.  If you do not have a lawyer review your agreement prior to this, this means that you are relying on your real estate agent to negotiate the terms of your agreement for you.  This is a great responsibility and just one more thing to consider when choosing an agent.

This post, however, is not geared towards evaluating the relative merits of agents.  Rather, it is a gentle reminder to take advantage of the clauses that you and your agent will have negotiated in your agreement.  Specifically, every HomeBuyer purchasing a resale property should have their agent include a clause which allows for the opportunity to visit the property before the transaction closes.  Note that you are entitled to at least one inspection prior to closing whether or not it is negotiated in the contract.   

A visit will allow you to check up on your other clauses.  For example, if you have also had your agent include a clause in your contract that states that the appliances or other chattels are to be in good working order (which you should), you will want to verify this fact personally, rather than merely relying on the word of the HomeSeller. 

Much emphasis is placed on HomeBuyers taking advantage of the Pre-Delivery Inspection when purchasing new construction, but despite the fact that there is no Tarion warranty for HomeBuyers purchasing resale, this is no excuse not to treat your opportunity to view the property just as seriously.  When you purchase resale, do not pass up the opportunity to walk through the property yourself, and be on the lookout for anything that appears amiss.  This will be especially important if you have not had the property inspected by a professional home inspector.

During your personal walk through, you should review a number of things, in particular:

- Bring a tape measure, you don’t want to discover on moving day that your couch won’t fit through the door – also, measure the windows, interior doorways and stairway entrances;
- Check all appliances – does the stove turn on?  Is the fridge running? Furnace/air conditioning? (This is where having a professional home inspection would have come in handy; visit Realosophy's HomeBuyers Guide for more details on this);
- Walls/plaster/tiles/carpet – check under the beds and couches – if the floors are a disaster, this will be your only opportunity to address it; and also…
- Look at the backyard and garage to make sure they have been maintained.

These are but a few of the issues to be on the look out for as you walk through the property that you are about to own.  As a HomeBuyer, you want to make sure that you are getting what you are paying for.  If you wait until after the transaction is closed, it will be much more difficult to resolve any outstanding issues.

Rachel Loizos is an associate lawyer at Sotos LLP in Toronto. She practices in the area of real estate law.
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Related Posts:

Pre-Delivery Inspection (PDI) for New Homes and Condos

http://www.movesmartly.com/2008/01/buying-resale-.html http://www.movesmartly.com/2007/09/prepare-for-the.html

Comments

[Toronto real estate agent]

However obvious it seems to be, the above post is very important. Many of my fellow real estate agents would assume that inspection of a property for the buyer would go without saying. It is not true. Not all of my clients realize the importance of visiting the resale property before closing. Similarly, not all of them know that they in fact are entitled to inspection prior to closing. Even if this is included in our contracts. So, Rachel, thanks for this reminder!

[Carl Minicucci - Vaughan Realtor]

Hello Rachel,

The Harkness and Cooney decision provides authority for the right to inspection, in the absense of an omitted provision in the offer.

However, why rely on precedent and complicate the matter. I strongly insist that the clause be added. From a lay vendor's viewpoint, it's much simpler and elegant to point to the added clause should any disagreement or resistance arise.

I would also suggest the use of photos (pre-inspection and final) in certain circumstances.

I don't know of the case law (if any) that speaks to the definition of "substantial damage" as it pertains to clause 14 of the OREA standard agreement of Purchase and Sale.

That would be intriguing. Consider it homework.

[Rachel]

Hello Elli and Carl,
Thank you for your comments. We always encourage HomeBuyers and their agents to specifically include the clauses that will provide the most assurances for them and we applaud your consumer commitment. This blog was inspired by some of my clients who have come in and told me that they had not seen the property since the open house!
As I mention above, while the HomeBuyer is entitled to an inspection, we agree that it is more effective to have the clause added to the agreement – unfortunately not all agents are as diligent at ensuring these clauses are inserted. This is why we want to alert the HomeBuyer to make sure their agent is aware if its significance.
To the question about clause 14 - as with all cases, each one will turn on their facts. If you have a particular fact scenario you would be interested in discussing, please feel free to contact me via email at my office.
RL