Buying "As is, where is"
Jan 21st 2009, 8:10 am
#1
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Joined: Oct 2007
Location: Ontario
Posts: 6,609
Buying "As is, where is"
Has anyone done this?
If so, does the fact you have brought it "as is, where is" get mentioned in the purchase and sale agreement?
If so, does the fact you have brought it "as is, where is" get mentioned in the purchase and sale agreement?
Jan 21st 2009, 8:42 am
#3
Thread Starter
Joined: Oct 2007
Location: Ontario
Posts: 6,609
Re: Buying "As is, where is"
Jan 21st 2009, 8:50 am
#4
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Joined: Mar 2008
Location: Winnipeg
Posts: 1,252
Re: Buying "As is, where is"
I guess they state that in the contracts so that if later on there are zoning issues then the previous owner is not liable...this is normally done when people are desperate to buy as the seller gets even more assurance the old house is not a liability anymore.
From what my lawyer told me when we bought our house is if there are any zoning faults with the property we can take the previous owners to court to pay for any reparations that would then need to be done (as long as we had no prior knowledge before the contracts were signed)...But if it's sold with terms and conditions like the above then you would not have the right to do that.
At the same time the only document that the new owner signs off on is the agreement between buyer and seller and thats the only one that the courts would look upon and therefore it wouldn't matter what MLS said.
Jan 21st 2009, 8:52 am
#5
Thread Starter
Joined: Oct 2007
Location: Ontario
Posts: 6,609
Re: Buying "As is, where is"
If it's not in the contract then the statement is surely null and void...
I guess they state that in the contracts so that if later on there are zoning issues then the previous owner is not liable...this is normally done when people are desperate to buy as the seller gets even more assurance the old house is not a liability anymore.
From what my lawyer told me when we bought our house is if there are any zoning faults with the property we can take the previous owners to court to pay for any reparations that would then need to be done (as long as we had no prior knowledge before the contracts were signed)...But if it's sold with terms and conditions like the above then you would not have the right to do that.
At the same time the only document that the new owner signs off on is the agreement between buyer and seller and thats the only one that the courts would look upon and therefore it wouldn't matter what MLS said.
I guess they state that in the contracts so that if later on there are zoning issues then the previous owner is not liable...this is normally done when people are desperate to buy as the seller gets even more assurance the old house is not a liability anymore.
From what my lawyer told me when we bought our house is if there are any zoning faults with the property we can take the previous owners to court to pay for any reparations that would then need to be done (as long as we had no prior knowledge before the contracts were signed)...But if it's sold with terms and conditions like the above then you would not have the right to do that.
At the same time the only document that the new owner signs off on is the agreement between buyer and seller and thats the only one that the courts would look upon and therefore it wouldn't matter what MLS said.
Cool
Jan 21st 2009, 8:54 am
#6
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Location: Winnipeg
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Re: Buying "As is, where is"
Jan 21st 2009, 8:56 am
#7
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Joined: Oct 2007
Location: Ontario
Posts: 6,609
Re: Buying "As is, where is"
So say, the Seller signed the paperwork stating the well was in good working order, suitable for a family of 4/5. Friends don't get a house survey and then boom...it turns out well isn't really suitable for bugger all....do they have a leg to stand on to gain compensation from the Seller, as the Seller signed a statement saying it was suitable?
Jan 21st 2009, 9:01 am
#8
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Location: Winnipeg
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Re: Buying "As is, where is"
So say, the Seller signed the paperwork stating the well was in good working order, suitable for a family of 4/5. Friends don't get a house survey and then boom...it turns out well isn't really suitable for bugger all....do they have a leg to stand on to gain compensation from the Seller, as the Seller signed a statement saying it was suitable?
Jan 21st 2009, 9:21 am
#10
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Location: Winnipeg
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Re: Buying "As is, where is"
i don't know who keeps the wiki updated anymore but this may be of some use...
Some small details regarding real estate law in canada...
Purchasing Real Estate
An offer to purchase must be in writing and will be made in a contract of purchase and sale. If the seller accepts and signs your offer, it becomes a binding and enforceable contract by either party. In other words, if either party breaks any of their promises (breaches the contract), the other party may sue for damages or sue for specific performance (a court order to carry out the terms of the contract).
The contract of purchase and sale will identify the parties to the contract, identify the property, establish the price and terms of the purchase and sale, amount of the deposit items such as appliances included in the price and specific dates when "condition precedents" are to be removed and the sale is to be completed.
Conditions precedent (commonly called "subject to's") are those things that must be done or arranged before the buyer can buy or, perhaps in some instances, the seller can sell. Typically most buyers need to arrange a mortgage in order to buy a home. Their offer would, therefore, be subject to them being approved for such a mortgage by a certain date.
Also, a prudent buyer will want to have the building inspected by a professional building inspector. In such a case the offer would be subject to them obtaining a satisfactory building inspection, again by a specific date.
In the event that the buyer isn't approved for a mortgage, or the building inspection is not satisfactory, the buyer will, on or before the dates specified, inform the seller that they cannot complete their purchase and ask that their deposit be returned to them.
Other important dates are:
Completion;
Completion date is when title (ownership) is transferred in the Land Title Office to the buyer and when the seller receives the sale proceeds.
Possession and adjustment dates.
Possession and adjustment dates are usually one day later. This is when the buyer gets the keys to the property and becomes responsible for taxes and insurance etc.
In all contracts, "time is of the essence". This means that the dates agreed to in a contract must be strictly adhered to. A party who fails to fulfill their promise within the time provided is, therefore, in breach of a fundamental term of the contract and the other party may sue for damages or specific performance.
Representations and Disclosure of Defects
When buying a home, both the buyer and the seller have responsibilities. The buyer has a responsibility to use "due diligence" to inspect the property in order to discover any "patent" defects. Patent defects are those that are not hidden and may be discovered by a reasonable inspection. There is a rule called "caveat emptor" (or buyer beware) that means that if the buyer does not inspect the property, he cannot later complain of defects which are not inconsistent with the seller's representations about the property.
However, the seller (or their agent) may not conceal or mislead the buyer about defects that would otherwise be evident. Such action could be fraudulent, thereby permitting the buyer to cancel the contract.
Besides patent defects, which are obvious, there can also be "latent" defects. These would not be revealed by a reasonable inspection. Although there is no implied warranty that a property is of any particular quality, if the seller knows, or could be expected to know that the buyer would not purchase the property if they were aware of the latent defect, the seller has a responsibility to disclose such defects to the buyer.
In general, if the seller did not commit fraud, the buyer can not legally complain if he or she finds a defect in quality, for example a leaking roof, after the sale. Therefore, before the sale, you must investigate the property fully. Some buyers make the purchase subject to inspection of the house by an expert, usually a certified home inspector.
Standard-form contracts of purchase and sale provide that there are no representations, warranties, guarantees, promises, or agreements except those contained in the agreement. If the seller makes representations ("promises") about the quality of the property have them written into the agreement. The buyer asks the seller to make written representations about the quality of the property in the property condition disclosure form. The seller responds to a list of questions which becomes part of the contract.
If you are buying a new house, you will similarly need express written warranties as to the quality of the building and agreement that the builder will repair defects found during the term of the warranty. Some builders provide warranties under the New Home Warranty Program.
This was copied from http://www.canadianlawsite.ca/realestate.htm#e
Some small details regarding real estate law in canada...
Purchasing Real Estate
An offer to purchase must be in writing and will be made in a contract of purchase and sale. If the seller accepts and signs your offer, it becomes a binding and enforceable contract by either party. In other words, if either party breaks any of their promises (breaches the contract), the other party may sue for damages or sue for specific performance (a court order to carry out the terms of the contract).
The contract of purchase and sale will identify the parties to the contract, identify the property, establish the price and terms of the purchase and sale, amount of the deposit items such as appliances included in the price and specific dates when "condition precedents" are to be removed and the sale is to be completed.
Conditions precedent (commonly called "subject to's") are those things that must be done or arranged before the buyer can buy or, perhaps in some instances, the seller can sell. Typically most buyers need to arrange a mortgage in order to buy a home. Their offer would, therefore, be subject to them being approved for such a mortgage by a certain date.
Also, a prudent buyer will want to have the building inspected by a professional building inspector. In such a case the offer would be subject to them obtaining a satisfactory building inspection, again by a specific date.
In the event that the buyer isn't approved for a mortgage, or the building inspection is not satisfactory, the buyer will, on or before the dates specified, inform the seller that they cannot complete their purchase and ask that their deposit be returned to them.
Other important dates are:
Completion;
Completion date is when title (ownership) is transferred in the Land Title Office to the buyer and when the seller receives the sale proceeds.
Possession and adjustment dates.
Possession and adjustment dates are usually one day later. This is when the buyer gets the keys to the property and becomes responsible for taxes and insurance etc.
In all contracts, "time is of the essence". This means that the dates agreed to in a contract must be strictly adhered to. A party who fails to fulfill their promise within the time provided is, therefore, in breach of a fundamental term of the contract and the other party may sue for damages or specific performance.
Representations and Disclosure of Defects
When buying a home, both the buyer and the seller have responsibilities. The buyer has a responsibility to use "due diligence" to inspect the property in order to discover any "patent" defects. Patent defects are those that are not hidden and may be discovered by a reasonable inspection. There is a rule called "caveat emptor" (or buyer beware) that means that if the buyer does not inspect the property, he cannot later complain of defects which are not inconsistent with the seller's representations about the property.
However, the seller (or their agent) may not conceal or mislead the buyer about defects that would otherwise be evident. Such action could be fraudulent, thereby permitting the buyer to cancel the contract.
Besides patent defects, which are obvious, there can also be "latent" defects. These would not be revealed by a reasonable inspection. Although there is no implied warranty that a property is of any particular quality, if the seller knows, or could be expected to know that the buyer would not purchase the property if they were aware of the latent defect, the seller has a responsibility to disclose such defects to the buyer.
In general, if the seller did not commit fraud, the buyer can not legally complain if he or she finds a defect in quality, for example a leaking roof, after the sale. Therefore, before the sale, you must investigate the property fully. Some buyers make the purchase subject to inspection of the house by an expert, usually a certified home inspector.
Standard-form contracts of purchase and sale provide that there are no representations, warranties, guarantees, promises, or agreements except those contained in the agreement. If the seller makes representations ("promises") about the quality of the property have them written into the agreement. The buyer asks the seller to make written representations about the quality of the property in the property condition disclosure form. The seller responds to a list of questions which becomes part of the contract.
If you are buying a new house, you will similarly need express written warranties as to the quality of the building and agreement that the builder will repair defects found during the term of the warranty. Some builders provide warranties under the New Home Warranty Program.
This was copied from http://www.canadianlawsite.ca/realestate.htm#e
Jan 21st 2009, 2:51 pm
#11
Forum Regular
Joined: Feb 2008
Location: Toronto, Canada
Posts: 285
Re: Buying "As is, where is"
The majority of these sales are generally properties that are being sold under difficult circumstances. For example Power of Sale, Estate Sale, Power of Attorney, etc. whereby the Seller is not prepared to warranty that the washing machine in the basement will be in good working condition on the day that you close the sale (especially after the parents have just popped their clogs!). With that said, it does not exclude all clauses for example a home inspection from being included in the purchase.
What they are telling you in simple terms is that if you include a clause that asks for a warranty or representation as to the condition of anything or asking the Seller to remove something ie the old oil tank in the yard, they will counter your offer with these clauses removed or just simply reject your offer.
The reality is that if you prepared to accept the condition of the property then ….you get what you get. You should include a clause for a home inspection although there is no guarantee that this will uncover any latent defect but it will give you a chance to get out of the deal without a scratch, if this is correctly worded, if something does come to light.
Doing your own due diligence is always good. Find good professionals to get sound advice and help.
Hope that this is helpful
Roy
Mar 18th 2009, 6:00 am
#12
Forum Regular
Joined: Jan 2009
Posts: 86
Re: Buying "As is, where is"
Ignore me - just 'book marking' for ref'...
Mar 18th 2009, 6:21 am
#15
Thread Starter
Joined: Oct 2007
Location: Ontario
Posts: 6,609
Re: Buying "As is, where is"
I thought someone was offering me some new advice to help me out!
Looks like I will have to continue waiting to hear from my Solicitor!
Looks like I will have to continue waiting to hear from my Solicitor!
