The Right of Inspection

February 28, 2019Man with a key opening front door

Recently, we were approached by a buyer whose real estate salesperson neglected to include an clause allowing him/her to inspect the property.  The Buyer was concerned that the Seller was going to remove the appliances and replace them with inferior ones. What were his options?

With regards to a professional inspection, the Buyer was simply out of luck. The standard Agreement of Purchase and Sale is clear on this point.

Section 13 of the standard Agreement notes:

…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 to do was different than a professional inspection.  He wanted to view the property in order to ensure that he was getting what he thought he was purchasing – similar to inspecting any other good that you purchase before you take it home from the store.   Given that a home is a significant purchase item for most people, it seemed a reasonable request, a fact with which the Ontario Courts seem to agree.

The Law Agrees:

The 1979 Ontario case, Harkness vs. Cooney enshrines the common law right that a purchaser has a right of final inspection so as to ensure that the quality of the property is the same as the one that was negotiated. There is no need for a special clause in the agreement.  In their Harkness decision, the court found that a purchaser did not have to close unless he could inspect the premises to see that it was in the same condition as it was when he bought it. To demand otherwise created needless hassle and diminished remedies for the buyer upon the discovery of damage.  

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