Real Estate Law

‍We placed an offer on a house, which was accepted by the sellers. The agreement is conditional upon a satisfactory home inspection. The house was built only a few years ago and we are considering waiving our right to a home inspection. If we do, what rights do we have if we discover some deficiencies in the house after the closing date? Should I wave my right to a home inspection?

Buyer Beware

The law in Ontario is pretty clear: “let the buyer beware”. Unless there is a fraud, misrepresentation or mistake made by the seller, the buyer takes the existing property as he finds it. Therefore, most of the time the buyer can’t make a claim against the seller for any deficiencies discovered after closing. The general rule is that there is no obligation to disclose any defects that the seller is aware of. The only exceptions to this rule are serious hidden defects. Hidden defects are those that are not discoverable by a reasonable inspection. Further, such defects have to be serious enough to either affect the integrity of the house or render the house unfit for human habitation. Hidden defects are also those defects that the seller is trying to conceal.

Representations and Warranties

The sellers of residential real estate in Ontario are not obliged to provide any representations or warranties to the buyer.

The standard Agreement of Purchase and Sale for a resale home used by real estate agents does not contain any warranties in regards to the physical condition of real estate property, except for a very limited warranty related to ureaformeldahyde insulation. The buyer might try to negotiate warranties into the agreement of purchase and sale, however this is very rare.

Home Inspection

A proper home inspection performed by an experienced home inspector is the best way to protect you from any unpleasant surprises. While a home inspector might not be able to identify all defects, especially hidden ones, it is the only way to learn what you are buying and to make an informed decision about one of the most important purchases of your lifetime.

As a first time home buyer you may be eligible to receive a partial refund of the Ontario Land Transfer Tax which is charged on real estate purchases. The First Time Home Buyers’ Tax Credit and the Home Buyers’ Plan are federal programs that provide assistance.

‍Land Transfer Tax (LTT)

‍The Land Transfer Tax is paid to Ontario government whenever there is a registered change of ownership of real property. While there are certain exceptions, the land transfer tax is generally payable whenever someone purchases a residential home. The amount of the LTT depends on the purchase price and the current tax rate rises progressively from 0.5% on the first $55,000 of the purchase price to 2% of the amount of purchase price which exceeds $400,000.First time home buyers get a LTT refund up to a maximum of $2,000. To qualify for this refund, you must not have owned a home anywhere in the world in the past and you must use your new home as your primary residence within nine months of the purchase. If you are buying a home together with someone that is not a first time home buyer, you can still receive half of the refund.

‍First Time Home Buyers’ Tax Credit (HBTC)‍

The First Time Home Buyers’ Tax Credit is available for the taxation year in which a first home is purchased. The value of this tax credit is $5,000. It can lower a person’s income tax by up to $750.

‍Home Buyer’s Plan (HBP)

‍Home buyers can withdraw up to $25,000 from an RRSP if the funds are used towards the purchase of their home. Although there are no immediate tax consequences at the time of withdrawal, the full amount must be repaid to the RRSP within 15 years. To qualify, the Purchaser must not have owned a home in the preceding four years.

We are buying our first home. The bank insists that we add my father as a co-owner of the home since in order to qualify for the mortgage amount that we need to include both incomes. The entire down payment is coming from our savings and we will be making all the mortgage payments. I really don’t want to include my father. What are your suggestions?

Guarantor of the mortgage v. being registered on title as owner

‍Adding a person that is not going to be living at the property as a co-owner is generally not recommended, unless you are buying an investment property. You should talk to your bank whether it would be sufficient to have your father as a guarantor on the mortgage, rather than a co-owner.

If the bank still insists on your father’s ownership, there are ways to structure the co-ownership in order to protect everyone’s interest and to minimize your father’s exposure to any tax related consequences of owning a second home.

‍Joint Tenancy and Tenancy in Common

‍There are two ways how two or more individuals can own a real property together. They can either own it as joint tenants or as tenants in common. The main difference between the two is that people who own a property as joint tenants have a right of survivorship, meaning that if either one of them dies, his or her ownership share passes automatically to the other surviving joint tenants. This is in contrast with tenancy in common, which does not have a right of survivorship, meaning that the share of the deceased tenant in common becomes part of such person’s estates. With tenancy in common you can also specify a size of a share that each co-owner owns. For example, your father can own 1% share of the home and you and your spouse remaining 99% share, with all of you owning the home as tenants in common, to make sure that your and your spouse’s share becomes part of your estate rather than transferring to your father in case something happens to both of you.