New Home Owners Dig into Their Legal Rights, Obligations About Backyard Burial

Bob Aaron in Legal, Home Selling, Home Buying

Property Disclosure

Just when I thought I
had heard every possible real estate problem, a client showed up with a
question that is so novel that the answer doesn’t appear in any court
cases or real estate text books.

“Jason” and his wife
recently bought a midtown house with plans to demolish and rebuild it.
They were in the process of obtaining permits from the City of Toronto
when a neighbour came over to talk to them and warned that the house had
a “bad history.”

After considerable
investigation, it turned out that the widow of a previous owner had
buried her husband’s ashes in the back yard and it seems that the
gentleman’s ashes had been stored in a vault at Mount Pleasant cemetery
for three years and after some prodding the widow picked them up and
brought them back to the house.

For want of a better
place to put them, she decided to bury them in the back yard and planted
a tree beside the spot. After figuring out where they were, Jason
decided to dig them up.

It was no easy task, but finally a plastic bag with the ashes was located a metre below the surface.

Not knowing what to do
with the ashes, Jason tracked down the family members of the former
owners to see if anyone was willing to take the plastic bag off his
hands. The widow who buried the ashes has dementia and was unable to
provide instructions.

The
sons of the deceased were either not aware of the fate of their
father’s ashes or were in no hurry to pick them up. Eventually, a kind
neighbour offered to store them and removed them from the property.

But the story does not
end there. Jason and his wife came to ask me whether, as a result of
the back yard being used temporarily as a burial ground for human ashes,
the property was forever stigmatized.

In
real estate, stigma may attach to a property for reasons unrelated to
its physical condition. Factors such as murder, suicide, the existence
of a marijuana grow-op or meth lab, sex scandal or even hauntings can
have a psychological impact on buyers. This can result in serious
difficulties marketing the property and a detrimental effect on the
market value.

In Ontario, sellers
have no legal obligation to disclose information about suicides, murders
or any other matters which might stigmatize the house. Real estate
agents, however, are required by their regulator, the Real Estate
Council of Ontario (RECO), to “discover and verify the pertinent facts
relating to the property and the transaction.”

As a result, agents
must disclose material facts regarding stigmatized properties so all
parties to a transaction are treated “fairly, honestly and with
integrity.”

But if the agent is
not aware of the property’s stigma, there is no obligation to disclose
something beyond his or her knowledge.

I knew what I was
going to advise my clients about the previous owner’s ashes but just to
be sure, I called Barry Lebow, a real estate agent who is Ontario’s
“go-to” expert on stigmatized properties.

Without any
hesitation, Lebow told me and my clients that the temporary use of the
back yard for burial of the ashes was definitely not a factor in
stigmatizing the property, and it did not have to be disclosed to
subsequent purchasers.

I had come to the same
conclusion, and likened the incident to the temporary storage of an urn
containing human ashes on a mantelpiece inside the house. Once the urn
had been removed, either from its spot above the fireplace or from its
resting spot in the back yard, any possible stigmatization of the
property disappeared.

Lebow told my clients to go home and “sleep soundly” at night.

My clients were very relieved, but I’m not sure everyone would feel the same way.

Would you buy a house where human ashes had been buried, temporarily or permanently, in the back yard?

Bob Aaron is a sole practitioner at the law firm of Aaron & Aaron
in Toronto and a past board member of the Tarion Warranty Corp. Bob
specializes in the areas of real estate, corporate and
commercial law, estates and wills and landlord/tenant law. His 
Title Page column appears alternate Fridays in The Toronto Star and alternate weeks on Move Smartly.  E-mail bob@aaron.ca

Legal     |     Buying     |     Selling     |    

Toronto’s most authoritative real estate insights, delivered right to your inbox.