Property Disclosure Statement

Local Inspection Issues Canadian Home Inspectors
#1

Hello, All!
I’m getting back into inspections after quite a few years away. With your permission I’ll run some questions by you guys once in awhile. I’ll always search the posts before I ask, to save a lot of repetition. I couldn’t find any info on PDS’s however.
Do any of you normally ask the listing realtor for a copy of the Property Dislosure Statement?
Thanks in advance for your replies.
Keith

#2

Hi Kieth, Welcome!

Occassionally the purchaser will bring it to the PDS to show me. I do not routinely ask for the PDS.

#3

Two things I don’t ask for;

1- The price as I am afraid that this knowledge might sway my judgement.( No proof , but better safe than sorry)

2- The pds. Again I am afraid that my attention will be turned from problems that I might find by the knowledge of problems declared. ( Again, no proof but . . . )

#4

If they offer it I say thanks but I would prefer to not see it till I have finished the inspection.
Like the others I want to do my job with no previous thoughts .
Roy Cooke . RHI…Royshomeinspection.com… CAHPI-ON

#5

I feel that reviewing a PDS only helps provide one point of view of the property. - That of the person that completed it!

It also may help shed some light on the honesty and integrity of that person. It also can be used to benchmark of what is claimed in the disclosure against what the inspector finds the current condition to really be.

I always felt that reporting a lack of a PDS also is indicative of the vendor and their role of seriously trying to disclose critical facts about the property.

#6

The PDS becomes irrelevent if the purchaser hires an inspector to inspect the property. The inspectors inspection and report trump the PDS.

#7

Ray,
that is not exactly correct, I have had at least two case where buyers went after the vendors because of statements they made in the PDS and won. Both cases were dealing with foundation leaks. In both instances the foundation areas in question were either not visible due to extensive storage (some stratigically placed items) or interior finishes. So in my humble opinion I feel that the PDS certainly can save an inspectors butt. In order to show due dilligance I always ask if one is available and if not direct my client to make every effort to attain one.
Wolf

#8

**Gallagher v. Pettinger, (2003-02-11) ONSC 01-CV-17992
**http://www.canlii.org/on/cas/onsc/2003/2003onsc10182.html

  • Issue 5 - Did the Vendors make Negligent Misrepresentations to the Purchasers?

  • [57] The vendors signed the VPIS stating that they were not aware of any water problems. They indicated that the basement was “damp”.

  • [58] The vendors indicated that there had been flooding on two occasions and that the section referred to on the VPIS referred to flooding of the lot. The purchasers would have been put on notice that when the lot flooded the basement may have been affected as well.
    [59] The purchasers made no further inquiry, even when their home inspector advised them of possible water problems in the basement in his written report.

    [60] Having found that the vendors lacked knowledge of the defect, I find that the vendors made no misrepresentations. In fact, the vendors advised the purchasers that the basement was “damp” and also that there had been two floods on two separate occasions.

     [61]       I do not find that the answers given by the vendors on the VPIS were negligently or recklessly made or amount to a misrepresentation as I have found the vendors lacked knowledge of the problems and gave notice of the problems of which they were aware.

  • Issue 6 - Did the Purchasers Rely on any Misrepresentation?

  • [62] The legal principles regarding reliance by a purchaser when a home inspector is retained were dealt with in Hoy v Lozanovski [1987], 43 R.P.R. 296 (Ontario District Court) and were stated as follows:
    **However, if the purchaser chooses to not rely on the vendor and requests inspections, including professional inspectors (i.e. Home Inspection Service) then reliance for completion of the deal (the waver in this case) is shifted to the inspector whom the purchaser has chosen. The purchaser has relied on the inspection report not the vendor’s silence, to formulate his decision whether or not to complete the deal…

**
Of course, as stated, if the vendor made representations to the purchaser or the purchaser’s inspection that were fraudulent, then the responsibility for disclosing the latent defect would remain with the vendor…

  • [63] Absent fraudulent representations or concealment, when a professional home inspector’s report is obtained then reliance has shifted to the home inspector.
  • [64] In this case, the purchasers obtained a home inspection report before waiving the condition. The report noted evidence of possible water problems and indicated that the type of repairs which have been effected and for which damages are claimed might be required.
    ][65] ** In view of obtaining an inspection report which indicates possible water problems any reliance the purchasers had made on the vendors statements on the VPIS document would have been transferred to the home inspector.*
#9

Ray,
I don’t disagree that in your specific case the home inspection trumped the PDS. However, in my cases it was proven that the vendors not only knew about the water leaks, but made a special effort to hide them or render them obsured while stating in the PDS that no problems existed. To my understanding from at least one of my clients the judge was not impressed and considered it boardering on fraud. So I think each case will be evaluated by the courts on its own merits.
Best regards
Wolf

#10

Wolfram,

In that case as you describe, yes because the owner new about it and failed to disclose, and intended to decieve, that would be negligent of him.

Cheers,

#11

Also from the above case which I thought were interesting.

[43] Justice Dubin further states that:
On the other hand, a latent defect of quality going to fitness for habitation and which is either unknown to the vendor or such as not to make him chargeable with concealment or reckless disregard of its truth or falsity will not support any claim of redress by the purchaser. He must find his protection in warranty.

Of course, as stated, if the vendor made representations to the purchaser or the purchaser’s inspection that were fraudulent, then the responsibility for disclosing the latent defect would remain with the vendor…

[63]      **Absent fraudulent representations or concealment,** when a professional home inspector’s report is obtained then reliance has shifted to the home inspector.
#12

Thank you all for your considered replies, and valuable information!