Buyer Beware - Real Estate | By Ashton Freund TLR Law

Buyer Beware! The (hidden) meanings behind this important Manitoba Real Estate concept

Buyer Beware! The (hidden) meanings behind this important Manitoba Real Estate concept

When it comes to buying and selling real property in Manitoba, people should be aware that “caveat emptor” aka “buyer beware” is in play. A fairly broad description of this would be to say that a Vendor is not legally obligated to disclose anything about the property that is being sold. The Buyer is required to undertake their own investigations of that property to determine if there are any possible issues or problems.

This means that the law in Manitoba protects a Vendor much more than it does a Buyer.  So, what exactly should a Buyer be doing to protect themselves when signing an offer to purchase?  The following are a few key items that every Buyer should take into consideration:

PROPERTY DISCLOSURE STATEMENT (PDS)

 

Along with the standard form of an Offer to Purchase, a separate document exists known as the Property Disclosure Statement (PDS) which, if filled out by the Vendor, will form part of the Offer.  The PDS is a series of “Yes/No” questions about the condition of the property.  If the Vendor answers “yes” to any of the questions, they will be able to add further details at the end of the document.

Now, don’t forget that the law is still “buyer beware” which means that a Vendor is not obligated to fill out the PDS.  However, it is always in a Buyer’s best interests to have a PDS form part of the Offer to Purchase.

A Buyer can make the Offer conditional on the Buyer being satisfied with the PDS.  If the Buyer reviews the PDS and:

  1. is NOT satisfied, the Offer can be terminated; or
  2. is satisfied, but later learns that one of the questions the Vendor answered “no” to should have really been answered “yes”. If it turns out the Vendor lied on the PDS, a Buyer could use this to his/her advantage and possibly bring a claim stating that the Buyer relied on the Vendor’s “false misrepresentation” to the Buyer’s detriment.

 

PROPERTY INSPECTION

 

It is also always in a Buyer’s best interests to hire a property inspector to do a home inspection and make the Offer conditional on that inspection being satisfactory to the Buyer.  A reputable property inspector will be able to determine if there are certain issues/problems with the property in question.

 

“SUBJECT TO LAWYER’S APPROVAL”

 

If a Buyer is uncertain whether or not the Offer to Purchase they are signing is in his/her best interests, that Buyer can make the Offer “subject to Buyer’s Lawyer’s approval”.  This condition would allow the Buyer’s lawyer to review the Offer and provide advice to the Buyer as to whether or not the Offer is really in the Buyer’s best interests.  If, at the end of the day, the Buyer’s lawyer advises it is NOT, and the Buyer does not wish to make a counte-offer, the Offer can be terminated (for lack of lawyer’s approval).

While the idea of “buyer beware” may seem frightening, it is important to note the following:

  1. If a Vendor answers any questions that a Buyer has about the property and their statement ends up becoming part of the Offer, the Vendor cannot outwardly lie. This is committing fraud and is illegal.
  2. A Vendor IS obligated to disclose any (1) material latent defects (see definition to follow) (2) of which he/she is aware (3) that may render the property either (a) dangerous or (b) unfit for habitation.

 

Definition of a “latent defect”: a defect that would not be discoverable by inspection or ordinary vigilance (inquiry) on the part of a prospective Buyer.

 

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