Canadian Lawyer

"Full disclosure is a nice thing. So are unicorns. But sometimes none of those things fit so well in the real world." William Harrington, Canadian Real Estate Association to complete the form on their own. "In Nova Scotia, they are optional, but then there's this sort of unwritten standard," says Moir, who presented on the issue to the Nova Scotia Bar earlier this year. "The courts have gotten away from the obvious express intent . . . to prevent the seller from hiding stuff." Instead, he says, the courts have applied a broad interpretation with the statements acting as a sort of warranty. "If you're buying residential property, it should be buyer beware, except for where the seller knows something." As a real estate agent trainer in New Brunswick, Sue Edgett advises listing agents to do nothing more than witness the forms. The statements remain the obligation and the responsibility of the vendor. "You could witness their signature, but never fill anything out." The problem with statements ultimately comes down to a clash of ideals. "Disclosure statements are interesting, I see them as an effort . . . to bring transparency in an area that has no transparency at all," says William Harrington, general counsel for the Canadian Real Estate Association. While the association takes no position on disclosure statements, which are generated regionally, he sees the issue, from the legal perspective, as a difficult one. Listing agents are constantly advised to disclose everything and the questionnaires allow them to do that. "Full disclosure is a nice thing. So are unicorns. But sometimes none of those things fit so well in the real world. From the perspective of the real estate agent, it is disclosure and it's putting all the cards on the table . . . regrettably it's not the law. That's the problem." The issue is the rule of law remains buyer beware, with only disclosure of material latent defects as an exception. The law does not require disclosure of all of the property's problems beyond that. "The property disclosure statement is caught right in the middle of these two philosophies," says Harrington. And so, as a result, it's no surprise the forms have been the subject of so much litigation. What might need to happen, suggests Harrington, is the introduction of legislation to control the issue. That has already happened in some U.S. jurisdictions. djacent properties, and any easements ovided in this agreement and save and e are complied with; you (b) any registered un with the land providing that such are telephone lines, cable television lines or e, where the central to the real estate transaction.ass Keeping you original mortgagee has s for the supply of domestic utility or tele le of the mortgage and the right to recei titleplus.ca do not materially affect the present use ments with publicly regulated utilities prov * * ® The TitlePLUS® policy is underwritten by Lawyers' Professional Indemnity Company (LAWPRO®). Registered trademark of Lawyers' Professional Indemnity Company. TitlePlus_CL_Sep_13.indd 1 www.CANADIAN 1-800-410-1013 L a w ye r m a g . c o m 13-08-13 9:17 AM September 2013 25

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