August 8th - 2012

Legal Beat: Buyer presented no evidence of water problem

The action arose after a house was purchased by the plaintiff, Ms. H. Graham in the City of West Quinte in 2002.

The action arose after a house was purchased by the plaintiff, Ms. H. Graham in the City of West Quinte in 2002. She and her family alleged that they continued to suffer serious health problems caused by a contaminated high-water table.

The judge observed that each of the three defendants, including the seller (Mr. G. Diamond), Pro Alliance Realty and the city, filed credible evidence of defense. On the other hand, he noted that the plaintiff filed no evidence, merely asserting to the court that she and her family suffered medical problems caused by the allegedly contaminated water. “In the absence of evidence I cannot accept her contentions,” the judge ruled.

Mr. Diamond credibly refuted the allegations against him, the decision read. The seller was unaware of and denies the existence of contaminated water or of any problems with his former property. He swore to the truth and accuracy of the statements in his Vendor Property Information Statement (VPIS). 

The real estate salesperson also filed an affidavit affirming the truth of his representations and denied any knowledge of problems, and the judge also accepted his evidence. The plaintiff conceded she had no evidence that this REALTOR® should have known of the alleged problems, while he in turn denied making the oral claims she alleged.

The court also heard from the municipality’s chief building official, who refuted the plaintiff allegations based both on the alleged failure to enforce the building code and failure to deal with alleged drainage problems on the property.

“The house in question was constructed in 1960, long before the provincial building code came into force some 15 years later,” the judge noted. “The code does not apply retroactively and the city could not require retroactive compliance. As to the alleged failure to deal with drainage complaints and to ensure satisfactory drainage and alleviate flooding, I am satisfied there was no such duty. The road in question was not a municipal road. The flooding complaints were not made known to the city until 2005.” 

“On the evidence, I am of the view that the problems suffered by the purchaser of the property, which in any event remain unproven, fall within the legal principle that the risk of latent defects of which the vendor of property is unaware -- is a risk that the purchaser assumes (caveat emptor).”

Graham v Diamond 2010 ONSC 4973

If the property contains a latent defect of which the seller is unaware, that is the buyer’s problem. This buyer could not prove that either the seller, the seller’s REALTOR®, or the municipality, were at fault. The SPIS was honest. Nothing was hidden, and therefore there was no fraud. 

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