Last month, I wrote in this space about a North York resident who
unknowingly purchased a house with a buried swimming pool in the
backyard. When it rains, the ground doesn't drain properly and the yard
becomes a grassy swamp.
In the same column, I wrote about clients of mine who sold their house
to a purchaser who found out before closing that there was an
underground easement for the Bloor-Danforth subway below the house.
The question I raised in the column was whether there was an obligation
on vendors or their agents to disclose obvious or hidden defects. (See
http://www.aaron.ca/columns/2004-06-05.htm for the June 5
Among the many responses I received to that column was an interesting
e-mail from Kathleen Bell, of King City.
She told me that she has lived in her home since 1968. In her
neighbourhood, she told me, all residents have private septic systems,
since there are no municipal sewers.
The subdivision homes built in the 1950s, and many of the older homes,
were built on lots that are not large enough to meet the present health
ministry requirements for weeping-tile beds and septic systems. In fact,
Bell's lot does not meet today's standards. To make matters worse for
drainage purposes, the soil is mostly clay.
Bell wrote that the political issue of connecting King City to municipal
sewers (the "big pipe") has been an ongoing local fight for some years.
"Houses sell every day in my neighbourhood," Bell wrote. "We know that
the septic systems are on their last legs or worse."
Many of the people are older or single and without children and
therefore use less water, she wrote, but often their apparent usage
doesn't present a realistic estimate of needs. Residents may illegally
discharge laundry and shower water into the ditches by sump pump to
avoid a burden on their septic systems.
In 1990, the Bells had to replace their septic system, but it was not
possible to construct a system that could legally meet provincial
requirements. Eventually, the family was allowed to add a 4,500-litre
plastic septic tank, along with several tonnes of extra sand and gravel.
They adjusted the tile-bed pattern, but were cautioned that it did not
meet current standards.
"You suggest full disclosure," Bell wrote to me, "but if buyers were
educated and if vendors actually gave full disclosure here, there would
be no sales. People shut up and get out. New owners shut up and get out.
Who knows what is keeping us in King City?"
Now comes the kicker. "We are thinking of selling," Bell added. "What
exactly should we disclose? Our septic system is functioning very well
(the 1990 job was well done). We have only two retired adults living in
the house and, like many others, watch how much water we use. For
example, laundry is not done in rainy weather. We have a working sump
pump and a clean ditch."
As I read the law of Ontario in 2004, a seller is not technically
required to disclose defects. Of course, they can't lie about them,
either, if asked a direct question. It's up to the buyer to inspect the
home and insert appropriate conditions and warranties.
Back in 1960, professor Bora Laskin (later chief justice of Canada)
wrote that the doctrine of buyer beware (caveat emptor) was the law in
Ontario. As recently as 1995, an Ontario court ruled that sellers did
not have to disclose obvious or hidden defects. Some legal authorities
suggest that the practice is moving toward a standard of candid
disclosure, but it's not there yet.
In the absence of a requirement of full disclosure, however, it becomes
particularly important for buyers to insert clauses in their offers to
purchase that carefully consider the issue of septic systems in areas
where there may not be municipal sewers.
Computer programs can spit out standard form agreements of purchase and
sale in minutes. It takes a lot longer for buyers to understand the
requirements of operating a septic system and carefully consider their
comfort level when buying a home with a non-compliant system.
What do you think? Should Kathy Bell be required to disclose in advance
that her working septic system fails to meet health ministry
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