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Real Estate role these statements play in residential real estate transactions. In Krawchuk v. Scherbak, the Ontario Court of Appeal found in 2011 that, if a seller voluntarily fills out a disclosure statement, he must do so honestly and accurately. And while the statements are not warranties, they may still be the basis of liability as representations. In the decision, Justice Gloria Epstein quotes Ontario Superior Court Justice Gordon Killeen's ruling in Kaufmann v. Gibson that "once a vendor 'breaks his silence' by signing the [seller property information statements], the doctrine of caveat emptor falls away as a defence mechanism and the vendor must speak truthfully and completely about the matters raised in the unambiguous questions at issue." But, asks Wilson from B.C., "If not this, what? And if it's nothing, then it's back to the old world of buyer beware and the common law of latent defects." From Lubos Pesta's perspective, that is how it should be. The Alberta Real Estate This is your legal community. Stay connected. LEGAL TELEPHONE DIRECTORY INCLUDES BRITISH COLUMBIA, NORTHWEST TERRITORIES, NUNAVUT AND YUKON British Columbia's vast legal community is right at your fingertips with the 2014 British Columbia Legal Telephone Directory. You get instant access to more than 11,000 lawyers and law offices spanning British Columbia, Northwest Territories, Nunavut and Yukon. And we keep you connected. Now in its 45th edition, each year we ensure this directory includes the most up-to-date names, phone numbers, mailing addresses and emails, so you don't have to search anywhere else. It's all here, instantly, the second you want to network or need legal expertise. Also get quick access to: Multiple copy discounts available Searching is fast and easy with: Durable spiralbound format saves on wear and tear of everyday usage! Get connected and stay connected to your legal community with the 2014 British Columbia Legal Telephone Directory. Order your copy today. Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation 24 ntitled-1 1 September 2013 www.CANADIAN L a w ye r m a g . c o m Association did away with the forms about eight years ago, recommending they not be used. "We felt the contracts . . . should be consistent with the common law," says Pesta, legal adviser for AREA's standard forms and practice committee who practises residential real estate law with Walsh Wilkins Creighton LLP in Calgary. "It really didn't fit our legal framework whatsoever." AREA determined the form failed to ask the relevant questions. Instead of the form, questions about material latent defects, which sellers are obligated to reveal, are now embedded in the listing contracts in the province. While disclosure statements are still occasionally used in Alberta, Pesta says they are being used with less frequency. Matthew Wilson sees the potential for more litigation. As a practitioner in real estate and land development with Lerners LLP in London, Ont., Wilson doesn't often see the seller property information statements in Ontario. "Most realtors in this area avoid using them." Their concern, which Wilson echoes, is by being involved in filling out the form, the real estate agent opens himself up to liability. "There is no advantage for the seller, in fact there are disadvantages for the seller. From the buyer's point of view it's still buyer beware. I think the big issues are, although these are not specific warranties, they're still statements. Filling out the seller property information statement really only invites possible litigation," says Wilson. He sees the potential for problems through not just misinformation but honest errors. He points to one question about restricted covenants, which is the lawyer's job to search and information the seller might not possess. The use of the word "excessive" is another question he says is prime for a challenge because it is subjective. In Nova Scotia and New Brunswick, property condition disclosure statements are the norm for regular residential real estate transactions, excluding foreclosures, when the property is being sold by a relocation company or when it's sold through an estate. They are offered as an option in the standard contract agreement of sale. But Matthew Moir of Weldon McInnis doesn't much like them. And his experience has been real estate agents generally take a hands-off approach, preferring the vendors 13-08-15 11:24 AM

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