- Ontario follows buyer beware, so a seller generally need not disclose patent defects that a buyer can find through reasonable inspection and inquiry.
- A seller must disclose latent defects that make the property unfit for habitation, dangerous or potentially dangerous.
- A seller who conceals a patent defect can lose the protection of buyer beware.
Finding a leak, a cracked foundation or a hidden problem after closing is upsetting. Buyers often ask what the seller was required to say, and whether the seller can be held responsible.
In Ontario, the starting point is buyer beware, with important exceptions for hidden dangerous defects and for sellers who conceal or misrepresent. This article explains those rules in plain terms and what you can do if you are on either side of the sale.
Buyer beware: the starting point
Ontario follows buyer beware. A seller generally need not disclose patent defects, which are defects a buyer can find through reasonable inspection and inquiry.
In practice, this puts the work on the buyer to inspect carefully and ask questions before waiving conditions. A home inspection and direct questions in writing are usually the best way to protect yourself.
Latent defects: the major exception
A latent defect is one that is not obvious on a reasonable inspection. A seller must disclose latent defects that make the property unfit for habitation, dangerous or potentially dangerous.
Failing to disclose a latent defect may be treated as misrepresenting the property, and wilful blindness can also create liability. A seller who avoids learning the truth in order to say nothing is not necessarily protected.
Concealing a defect
Buyer beware does not protect a seller who hides things. A seller who conceals a patent defect can lose the protection of buyer beware. Painting over a stain, or covering a problem so an inspector cannot see it, are the types of conduct that can matter.
| Type of defect | Seller's general duty |
|---|---|
| Patent (can be found by reasonable inspection and inquiry) | Generally no duty to disclose, unless the seller conceals it |
| Latent, making the property unfit for habitation, dangerous or potentially dangerous | Must disclose |
| Latent, not dangerous or unfit | Not covered by that disclosure duty, but a misstatement can still create liability |
Property information statements and 'as is'
A seller property information statement is not a required form. A seller's agent may ask the seller to complete one, and it is based on the seller's own knowledge and experience. If a seller has prepared one for buyers, the seller's agent must tell every interested buyer that it exists and must give a copy to any buyer who asks.
What an 'as is' clause means for a particular sale depends on its wording and the circumstances, so it is worth confirming with a lawyer before you rely on one. How far it protects a seller depends on its wording and the facts. Based on the rules above, it would be risky for a seller to rely on it to cover concealment or misrepresentation. Have a lawyer read the actual clause.
What to do next
If you are a buyer who has found a problem after closing, act promptly and preserve the evidence.
- Photograph the defect and stop any work that would destroy evidence, once the property is safe.
- Get a written report from a qualified contractor or inspector on the cause and cost.
- Collect the agreement, the inspection report, any property information statement and listing materials.
- Ask whether the defect was patent or latent, and whether the seller knew about it.
- Speak to a lawyer about your options before contacting the seller in a way that could harm your position.
If you are a seller, answer questions honestly, do not hide visible problems, and ask your lawyer how to handle known hidden defects before you list.
Frequently asked questions
Does a seller have to tell me about every defect?
No. Ontario follows buyer beware, and a seller generally need not disclose patent defects that a buyer can find through reasonable inspection and inquiry. The exceptions are hidden defects that are dangerous or make the home unfit, and any concealment.
What is a latent defect?
It is a defect you could not find through a reasonable inspection. A seller must disclose latent defects that make the property unfit for habitation, dangerous or potentially dangerous.
Is a seller property information statement required?
No, it is not a required form. A seller's agent may ask for one, and it reflects the seller's own knowledge and experience. If one exists, the agent must tell every interested buyer and give a copy to any buyer who asks.
Does 'as is' stop me from making a claim?
Not necessarily. Its effect depends on the wording and the facts. A seller who conceals a patent defect can lose buyer beware protection, and failing to disclose a latent defect may be treated as misrepresentation.
Sources
- RECO – Property information statements — reco.on.ca
- RECO Bulletin 7.4 – Facts a seller has a legal obligation to disclose — reco.on.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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