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REAL ESTATE their members, according to Stephen Thiele, a partner and director of legal research at Gardiner Roberts LLP, a To- ronto-based firm whose clients include real estate agents and the Toronto Real Estate Board. He says realtors generally like the concept because they believe a paper record of any representations made to the purchaser should reduce potential disputes. It is a proposition that many real CDI CAN Law 1-2pg 12/7/07 3:14 PM Page 1 estate lawyers in various parts of the country endorse. For example, Tony Spagnuolo, the owner of Spagnuolo & Co. Real Estate Lawyers, in Port Moody, B.C., says: "It's part of the practice in B.C. and I regard it as a good thing. We've always encouraged our clients who are vendors to complete it and complete it as accurately as possible. If there's an issue, disclose the issue up front to avoid a potential lawsuit down the road." "It's very common in Saskatchewan. The greatest majority of residential purchases use this document," says Richard Carlson, a partner at Cuel- enaere Kendall Katzman & Watson in Saskatoon. "I try to promote sales that are fair to both parties and I like the idea. It avoids problems in future." On the contrary, says Thiele, who has reviewed numerous cases where these statements have been at issue, "It seems to be a document that, although de- signed to avoid problems, is leading to more and more litigation." Timothy Platnich, a litigation part- ner at Calgary-based Caron & Partners LLP, says disclosure statements "put the risk of certain defects more squarely on the seller, whereas it used to be caveat emptor." "With these addendums to real estate purchase contracts, the seller is making all kinds of representations. And, if any of these representations prove to be untrue or even apparently untrue, the buyer upon discovering a condition will sue the seller," says Platnich, who has acted in several such cases, both for sellers and buyers. Platnich notes that the law does place an onus on sellers not to misrepresent or hide latent defects in their property — existing problems that purchasers or house inspectors would not necessar- ily be able to see for themselves. Nev- ertheless, it could be hard for a pur- chaser to win a lawsuit in a situation where the homeowner may or may not know about a defect, but says nothing about it and is not even present when the purchaser inspects the property. "If there's no disclosure statement, even if it later turns out that the vendor knew something about a defect, it could be a stretch for the purchaser to win on a lawsuit because on the old buyer-be- ware principle, the vendor was not un- der any obligation to disclose anything. They could remain completely mute," he says. "If I was on a deal acting for a seller, 22 JANU AR Y 2008 www. C ANADIAN Law ye rmag.com I'd say 'Don't sign one of those state- ments,' and, if I was acting for a pur- chaser, I'd say, 'Try to get one of those statements,' " Platnich says.