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Copperlaw
Copperlaw, Lawyer
Category: Canada Law
Satisfied Customers: 2012
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As a buyer can we sue the sellers real estate agent for non

Customer Question

As a buyer can we sue the seller's real estate agent for non disclosure.
We just purchased a house and at the last minute before closing found out that the property boundaries are not what they appeared to be?
History: When we looked at the property with the seller's agent, we stood on the back deck looking at where we could put a hot tub and discussed how the yard had some privacy due to the tree/shrub line across the back between us and the rear neighbours, which was in line with all the other fences and tree lines. The agent was right there with us and never said a word. At closing we discovered that the property line was actually 15'8" closer to our house from there and this stretch (75' wide, property width) belonged to the next door neighbour including the horse shoe pits on this strip of land with no other markings to distinguish it as "not ours". The next door neighbours lot is a "T" and contains a strip behind our lot and the neighbours lot on the far side. We live in a small farm town in a 100+ year old home. We found out that the sellers (who actually bought our house) had told their agent multiple times to make sure any potential buyer was aware of the unusual boundary line. The agent admitted she knew this to us, her boss, the seller's lawyer, our agent, basically everyone except us!
Luckily the neighbours are very nice and are willing to sever the strip of land, we are looking to reclaim costs from the county, surveying, legal and purchase price of the strip of property.
We had an agreement for a fraction of the potential costs but the seller's agent wanted us to sign a FULL release for the entire property, structure and all. We said we would only sign a release for the boundary issues, not for the structure and it sounds like they are withdrawing the offer. I am wondering if them "agreeing to settle" also shows as proof and admittance of previous knowledge?
Thank you,
Mike in Ontario
Submitted: 4 years ago.
Category: Canada Law
Expert:  Copperlaw replied 4 years ago.

Copperlaw : Hi there
Copperlaw : This is a tad confusing near the end.
Copperlaw : Has the purchase transaction been completed?
Copperlaw : Did you lawyer obtain surveys, searches etc prior to closing?
Copperlaw : Was the lot size described anywhere? Descriptive documents, MLS listings etc
Copperlaw : What does your agent say about this?
Customer:

My apologies, yes the purchase has completed.

Copperlaw : Do you ave any idea what the cost of the added land will be?
Customer:

Our lawyer did a title search.

Customer:

The lot size was indicated and is shown correctly. Obviously we did not measure it out to verify.

Customer:

Our agent hasn't had much to say. Both agents work for the same office. We brought our agent in on the sale and to list ours after we had already viewed the property with the seller's agent who had the opportunity to disclose what she knew, but did not.

Customer:

The added costs include approximately $5000 - $6000 in costs for the County, survey and legal. Then about $2000 for the actual purchase price from the neighbour.

Customer:

I guess the basic question is, as a buyer can you sue the seller's real estate agent for non disclosure of something they had knowledge of, which would have had an effect on our decision to purchase the property.

Copperlaw : the general rule is that there is no legal obligation (moral obligations are different) to disclose information that is readily discoverable by the buyer.
Customer:

So with that said, our chances in small claims court would be minimal at best?

Copperlaw : This is mostly seen in cases where a buyer declines their right to have a home inspection, only to find later that the roof leaks as the shingles are bad
Copperlaw : As an example
Copperlaw : It was there to be seen, had the buyer done a proper inspection
Copperlaw : Their is an expectation that any buyer will exercise their own due diligence
Copperlaw : Cars, homes, boats etc
Copperlaw : In this case, the size was provided, and therefore readily discoverable
Copperlaw : So yes, your chances would be slim to none
Copperlaw : And you could end up paying their legal costs
Copperlaw : I know it's not what you were hoping to hear
Customer:

Wow, so a seller can disclose everything and anything to their agent and the agent doesn't have to pass it along and there is nothing you can do about it?

Copperlaw : You could always request a "rebate" of a portion of the commission from the sellers agent, in good faith
Copperlaw : As long as it is there to be seen, yes
Copperlaw : Now morally, that's a different thing, and you'd expect that they'd at least comment on it when you were viewing the yard
Customer:

So, even though the agent has admitted to everybody she knew about it and still didn't disclose it, that doesn't help us?

Copperlaw : Now Realtors are obligated to conduct themselves with integrity and professionally and if they do jot, they can be subjected to disciplinary action
Copperlaw : Thy are governed by the Real Estate Council of Ontario
Copperlaw : http://www.reco.on.ca/
Copperlaw : You can look through their site and complaint procedure if you wish
Copperlaw : Morally, she's wrong, legally, if it was disclosed in the listing etc, she's met her "legal" obligation to you
Customer:

I appreciate your time and answers even if they weren't exactly what I was hoping for. Much appreciated. Mike

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