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REAL ESTATE in recent years, Krawchuk v. Scherbak focused on the use of a seller property information statement (SPIS), a form developed by real estate associations for disclosing any defects or problems with the property of which the homeowner is aware. Lawyers have frequently warned about the risk of using these forms because they may expose the vendors to a legal finding of misrepresentation or even fraud in a situation where they could have made no disclosures what- soever, relying on the common law doctrine of caveat emptor, whereby it is up to the buyer to detect patent defects. Nevertheless, real estate agents in many parts of the country still recommend using them, because they provide both the seller and the agent with a way of proving they have disclosed any known latent defects, as they are obliged to do under common law. But realtors will likely have to think since the appeal court ruling again, TitlePlus_CL_Mar_10 2/11/10 12:54 PM Page 1 found that not only the vendor, but also the real estate agent, were liable for neg- ligent misrepresentation in conveying incomplete and inaccurate information about the house. "It would be foolhardy for a seller ever to sign an SPIS again," says Peter Best, a Sudbury lawyer who represents the vendors Timothy and Cherese Scherbak and is seeking leave to appeal the case before the Supreme Court of Canada. He says his clients are honest people who tried their best to be forthright in their disclosure statement but innocently forgot something. They disclosed that there had been structural problems with a corner of the house 17 years earlier, but stated that it had settled and there were no further prob- lems since then, omitting to mention that they had detected a significant sinking of the foundations while doing renovations in 1991 and that there were also sewage backups arising from a defect in the plumbing. Everything you need Together we have all the tools The TitlePLUS® protect your clients from title risks.1 Program works with you to help With the right tools we assist you, through our legal serv- ices coverage2 , by reducing the inconven- ience of dealing with a loss as the result of an error or omission in your real estate transac- tions. To ensure your clients get the most compre- hensive coverage in one policy, take a look at the TitlePLUS Program, your Bar-related® estate partner! real PROTECTION AS GOOD AS IT GETS 1-800-410-1013 1 titleplus.ca Please refer to the policy for full details, including actual terms and conditions. The TitlePLUS policy is underwritten by Lawyers' Professional Indemnity Company (LAWPRO®)/ Assurance LAWPRO®. Assurance LAWPRO is a registered name used in Québec by Lawyers' Professional Indemnity Company. Contact LAWPRO for brokers in Manitoba, Alberta and Québec. 2 Excluding OwnerEXPRESS® policies and Québec policies. ® TitlePLUS, the TitlePLUS logo, OwnerEXPRESS, LAWPRO and Assurance LAWPRO are registered trademarks of Lawyers' Professional Indemnity Company. ® BAR-RELATED Mark is a registered Mark of North American Bar Related Title Insurers used by LAWPRO under License. 20 SEPTEMBER 2011 www. CANADIAN Lawyermag.com