Buyer’s Right of Home Inspection

A buyer asks — What are my home inspection options if I’m concerned the seller will remove appliances and replace them with inferior ones?

Whose Right of Home Inspection?

The buyer was worried his realtor had neglected to include a home inspection condition clause in the agreement of purchase and sale. 

Reading the small print in his agreement was revealing. Quite simply, he was out of luck if he wanted a professional home inspection. The standard agreement is clear on that point and that’s what he had. (You can amend an agreement to add a home inspection clause if the seller is willing, but we’ll come back to that.) 

What mattered is this –

Inspection Clause in Real Estate Contracts

Section 13 of a typical purchase and sale agreement says: 

…The Buyer acknowledges having the opportunity to include a requirement for a property inspection report in this Agreement and agrees that except as may be specifically provided for in this Agreement, the Buyer will not be obtaining a property inspection or property inspection report regarding the property.

But what our client wanted was different from a professional inspection. He wanted to view the property before moving in to ensure he was getting what he thought he was purchasing. His expectation was similar to inspecting any other good you purchase before you take it home from a store.

Given a home is a major purchase for most buyers, it seemed like a reasonable request. Ontario courts appear to agree with us on that.

Law on Home Inspection Clauses (Ontario)

Harkness vs Cooney, a 1979 Ontario court case, upholds a purchaser’s common law right of final inspection. The inspection ensures the quality of the property is the same as the one that was negotiated. 

In other words, buyers have no need for a special clause in their agreement. The Harkness decision found the purchaser did not have to close unless he could inspect the premises to see it was in the same condition as when he bought it. 

To demand otherwise created needless hassle and diminished remedies for the buyer if he discovered any damage.

Advice to realtors on drafting home inspection clauses

Arranging a Pre-Possession Inspection

Our buyer could have prevented needless worrying with a pre-possession inspection clause. Axess Law’s real estate lawyers include inspections when desired and ensure who owns chattels and fixtures is put in writing.

Why a Home Inspection Matters

You may think what you see is what you get. Think again. What really matters in a home inspection is this. 

How to make home inspections successful.

Chattels Are Not Fixtures

You give up the right to chattels and fixtures <put link here> unless they are included in your agreement. Distinguish chattels v fixtures in your offer to purchase. What Stays or Goes In our case, because appliances could be moved, they were not considered permanent or an improvement for the “better use” of the property. The seller was free to take them.

Making a Record

Record the make and model of appliances you want to keep, and take photos. Ask your realtor what the seller expects to keep, and what goes with the property. Get it in writing.

Agreeing to Substitutions

Ensure replacements are of similar quality. Put it in writing.

Staged vs Permanent

Find out if appliances or fixtures are owned or staged (leased). Ask your realtor for costs to buy or lease items you want to keep.

What to Check for During Inspections

Be thorough on pre-possession inspection day. Delaying until the last minute could be an early warning sign items may be missing when you move in. 

5 very important things to look for in a pre-possession home inspection:

  1. The property is substantially the same as when you signed the offer. The seller’s move-out hasn’t left exposed wiring or evidence of pests. 
  2. Electrical fixtures are in place.
  3. Appliances match photos or descriptions you recorded.
  4. Substitutions or replacements are agreed to and acceptable.
  5. Damages, like holes or water damage, will be repaired by the seller.

What’s not included:

  • Sellers have no cleaning obligations. State in your offer if you want rugs shampooed. 
  • Insubstantial damages do not void the sale.
  • Tenants require legal notice for inspections.
  • The seller’s insurer has no obligation to pay for repairs if their policy has lapsed.
  • Your insurer likely won’t pay if your policy hasn’t taken effect when damages are discovered.

What Fixes Are Mandatory After a Home Inspection?

No fixes are “mandatory” after a home inspection, but minor repairs may be negotiated with the seller’s lawyer. Obvious health hazards or structural faults can be cause to cancel the sale, or reduce your offer. As-is condition is assumed when you make an offer. 

Contact your Axess Law real estate lawyer immediately if you discover problems. We will negotiate with the seller’s lawyer where we can, but you may have to go to court to get recourse. 

Read common real estate questions you ask us.

Hiring a Home Inspector

Locate licensed home inspectors in Ontario by contacting their professional associations:

  • The Ontario Association of Home Inspectors (OCHI)
  • Canadian Association of Home & Property Inspectors (CAPHI)
  • Inspection Certification Association (ICA)
  • Ontario Association of Certified Home Inspectors (OntarioACHI®) 
  • or the National Home Inspector Certification Council (NHICC).

For mould, fire or water damage, or flooring restoration, call the Institute of Inspection Cleaning and Restoration Certification (IICRC).

Home inspectors may be liable for missed damages.  

Why You Need a Real Estate Lawyer

Axess Law’s virtual real estate lawyers review your agreement of purchase and sale for subject-to clauses that preserve your right to inspect. You can video conference with us anywhere in Ontario, sign, and have legal documents witnessed online.  

When real estate deals go sideways, we negotiate with the seller’s lawyers to get you the best possible outcome for your circumstances. Our licensed legal professionals answer your questions about if a deal falls through, who gets the deposit

Affordable Real Estate Lawyers, Anywhere You Are 

Access lawyers for less in Greater Toronto Area, Ottawa, or anywhere in Ontario  when you buy, sell, or transfer property. Axess Law’s flat fee real estate lawyers are affordable, and our rates are all inclusive (excluding taxes, disbursements, and third-party charges). Axess Law offers you only the legal services you absolutely need. Your final invoice includes no surprises or hidden charges. Your itemized statement of adjustments is explained when we deliver it, and we answer any questions you have about it. 

Book Virtual or In Person Legal Appointments

Use our online booking form to reserve appointment times that work for you. You can call our 647-479-0118 lawyer line, toll free to 877-522-9377, or drop by any Axess Law office in Ottawa or Greater Toronto Area. We have onsite parking and easy transit access.

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