Your Home / Toronto

Legal Matters: Conditional offer doesn't protect if you don't inspect

A septic tank has caused a stinky mess for these home buyers.

A clause that the septic system be inspected was ignored by buyers after a dated certificate showed it met municipal requirements. Jeffrey Cowan advises.

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A clause that the septic system be inspected was ignored by buyers after a dated certificate showed it met municipal requirements. Jeffrey Cowan advises.

Q: We recently purchased a year round cottage property for our family and are using it as our primary residence. It has a septic tank so our agent put a condition in the offer that the tank be inspected to make sure it works properly, have it pumped out if necessary and that it meets with municipal requirements. The vendors produced a certificate from 2015 that the tank met specifications and it was explained to our agent that the property was only used on weekends by an elderly couple so there shouldn’t be any issue with the septic system. She was satisfied so we proceeded to purchase the property. We moved in with our three kids and the tank backed up almost immediately (so we couldn’t flush the toilet). We had an inspector come out and we discovered that the tank was full and that it was rated too small for a four bedroom house (the house had an additional two bedrooms added on). They estimate it will cost nearly $20,000 to replace which is money we don’t have. What should we do?

A: The clause was inserted for a reason and unfortunately, it wasn’t followed through. I assume your agent didn’t get you to sign a formal waiver of the condition which technically means that the deal was null and void; however, the transaction took place none-the-less. I would assume that the vendor’s lawyer’s response will be that the clause was there and it was not adhered to so the responsibility lies with purchasers and not with their clients.
This is an expensive mistake for the purchasers and they may still wish to pursue their legal remedies but I am not sure how good their chances are.

Jeffrey Cowan is a real estate lawyer and can be reached at jeff@cowanlaw.ca.

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