andrew & linda

Hi,

It's 10.30pm as I begin to type. I can't sleep as todays antics weigh on my mind.

We've been members of the forum for over four years now, post infrequently but read the posts daily (it's part of my morning ritual LOL).

I'm hoping that some legal minds can help with my questions. We are in Alberta should it make a difference to the replies we receive.

We bought our current house in January 2010. This was our second house purchase in Canada, our first being a new build which was relatively straight forward compare to this purchase. When we bought our current home, the vendors solicitor withheld a portion of the funds from the vendor while they were awaiting compliance for a deck which had been added in the back yard. In April 2010 we received a letter from our solicitor telling us that he had received a copy of Title together with the Real Property Report and Letter of Compliance from the city. Everything was sorted, or so we thought until today . . . . .

This morning I received a visit from the City's Inspector asking to do the final inspection of our deck as per the permit. I told him I was surprised to see him as everything had been sorted. We told him about the money being held back and he agreed that this was normal practice. We let him see the deck anyway, seeing as he was here, and he immediately said that the deck was not up to code. He listed a number of defects including the joists which should be a minimum of 2x8 were only 2x6.

I duly contacted my solicitor who in turn stated that it may be a case of buyer beware. That people buy houses with basements renovated and how is he, as a solicitor, to know that the appropriate permits have been complied with. That in a sense it is up to us homebuyers to check that the permit was complied with. Also, if we have any recourse, it may now be too late to do so as we have been in the house for 1 1/2 years.

I contacted the city again and they told me that the vendors solicitor requested compliance in January 2010. They were told by the city at this time that the deck didn't have permits. The permit was applied for in April 2010 by the vendor (three months after we had taken possession of the home) and compliance with the land use by-law was granted but not with the Safety Codes Act. The retained funds were then released to the vendor.

My questions are -

- is it my responsibility as a purchaser to personally check with the city, prior to purchase, that all permits have been complied with? I honestly thought that was what we paid the lawyer for!

- as part of the permit being granted, final inspection is required. If the vendor applied for the permit in April then the funds were released to him, is he still duty bound to ask for the final inspection? Can the city fine him for failing to comply with the permit he requested?

- do I have any recourse? We bought the house in good faith and now, if we decided to sell tomorrow (which we don't) we would have to tear down the deck!

Sorry for the long-winded post. I look forward to any advice that may be forthcoming.

Linda

Almost Canadian

The deck should have been referred to on the Real Property Report. This is a plan of the property that you should have reviewed with your lawyer. You then declare a Statutory Declaration confirming that it complies with what you are expecting to buy.

The Deck may not have been referred to on the Real Property Report, if it did and you agreed with it, it is your fault and you can blame no one.

However, your post below suggests that there was an issue with deck at the time you signed your paperwork which resulted in the holdback. Your lawyer should have imposed trust conditions on the vendor's lawyer requiring a Real Property Report with compliance (confirming that all is good with permits etc) before the holdback was releasable.

I cant' understand how compliance was granted without an inspection. Usually, the permit is applied for and, as long at is complies with codes and by laws it will be granted allowing the work to proceed. Once the work is finished, an inspector attends to ensure that to work complies with the permit.

The vendors have done nothing wrong. From what you have said below, you proceeded with the purchase knowing there was an issue. It appears to me that your lawyer has screwed up. S/he should not have agreed for the funds to be releasable until everything was OK.

Report them to the Law Society and sue them for the cost of replacing the deck.

iaink

On a practical front, how hard can it be to put new hangers up and hang 2x8s next to the existing 2x6s?

Almost Canadian

It will raise the height of the deck by 2" or will require the lowering of whatever supports the joists by 2". Neither are particularly easy fixes

I say, sue the bastard.

andrew & linda

Thanks for your replies so far.

There was no issue with the deck that we were aware of during the purchase process other than it was a new addition by the vendors.

Yes, the deck does show on the Real Property Report however the City have advised us that the Compliance letter they sent out simply means that the dimensions of the deck as shown on the RPR simply means that the deck complies with the land-use bylaws and is within our property boundaries. The letter goes on to say that this does not mean that it complies with the Safety Codes Act. The girl I spoke with at the City states that this means there are no permits although I don't know why the letter didn't state in black and white that there are no permits. I think this might be the issue.

It would appear that the vendor has built the deck, sold the house then pulled the permit because he was told he was not getting x amount of money until there was a permit. Having pulled the permit, he got his money but then didn't have the city do a final inspection of the deck.

So, is it a case of buyer beware? Should I have had the sense to check with the City for permits? If so, it's a lesson to be learned for me, a sore one!

And on a more practical note (tearing down the decking aside) the City Inspector is going to give us a report on what (if anything) we can do with the deck to make it comply with Code. Fingers crossed it's doable but again it's all work we weren't aware was coming our way!

andrew & linda

I should also add that it appears it was the vendors solicitor who held back some funds until the permit was pulled, not our solicitor.

Almost Canadian

I appreciate that it was the vendor's lawyer that held back the funds (the funds that you had paid over). It was your lawyer's duty to ensure that the funds were not releasable until all trust conditions were met. The question is: Did your lawyer impose sufficient trust conditions to protect your interest? If not, s/he was negligent and, it would appear, such negligence has cost you.

andrew & linda

thanks for your replies so far.

Can I ask just one more opinion of you? I have just this minute spoken with our solicitor. Understandably he can't recall the exact details of our purchase as it has been a year and a half since we bought our house.

He is saying though that we may not be able to do anything about this because it has been 1 1/2 years since the transaction. Is there a time limit for this?

Also, he's saying that if you buy a used house you expect some flaws! I tried to say that we bought the house in good faith thinking that all the paperwork was in order. It's not that we bought the house knowing that there were problems with the deck. He was having none of it and said he would have to check our file.

The letter from the City stating land use was in order was dated 25th March 2010 however the permit was only applied for on 10th April 2010. I think the vendors solicitor knew there was no permit that's why he held money back until the permit was pulled. But, surely part of obtaining that permit is that there is a final inspection, no?

Are we too late to do anything given that this all came to light only yesterday?

L

Almost Canadian

Limitation period is 2 years in Alberta, so you need to get your skates on!

Walsh Clan

What about title insurance, is this something you have? Would you be able to
complete the work if they provided the funds?

andrew & linda

Hi, thanks for replying. I'm not sure what you mean with Title Insurance. Can you explain further?

My heads spinning as the City Inspector was out today and found more wrong than he first thought. Without listing everything that's wrong here, suffice to say that we'll be building a new deck! Everything from too big a cantilever (if that's how you spell it) to missing nails/screws in hangers etc. The list goes on.

Needles to say our solicitor hasn't gotten back to us yet despite promising he was going to check our file and get back to us.

I've printed off some information from the Law Society of Alberta who have a claims for negligence process. This might be an option for us.

Thanks so far.

Aviator

If you don't know what it is likelihood is you did not agree to get it.
http://www.cbc.ca/news/story/2002/01...ce_020108.html
http://www.carrlaw.com/title-insurance.asp
http://www.alsa.ab.ca/uploads/files/..._insurance.pdf

Lots of profit for the insurance company.

james.mc

Looks like Andrew & Linda's solicitor is playing for time, of which there may not be much left. From what I can see they have let you down and I would ultimately look towards them for recovery of costs in rebuilding the deck and any other legal costs involved in sorting this out. It kind of makes using a solicitor a waste of time if they actually don't make sure that the legal aspect of the transaction is all in order.

I'd take what you have, by way of documentation and events, and seek (different) legal advice ASAP on how best to proceed and leave your solicitor out of it for the time being. No point in fretting over what if's when a consultation with another solicitor might give you a clear path to follow. Ask from the outset if the costs of any action they take on your behalf would be recoverable from the other party (your ex-solicitor). It might be they need to lodge some kind of initial legal action with the courts before the expiry date.

Whilst it's fresh in your mind start writing down notes with dates and times of the inspector visits, your calls to city etc. You'll likely need this later.

Good luck!

andrew & linda

Thank you everyone for your replies.

I am going to keep a note of everything from speaking with our solicitor to Inspector visits and yes, we will seek legal advice on how to proceed.

I know to some it might seem like tearing down and rebuilding a 18' by 15' deck is no hardship really - probably cost us around $3,000 if we do the work ourselves, double if we get a contractor in to do it (and yes we will pull and comply with the permit LOL). However, it's all work and money that we didn't anticipate having to do / spend (as well as the time involved) as we handsomely paid the solicitor to look after our interests!!

Thanks again everyone.

JonboyE

Think long and hard before trying to sue a lawyer over $3.000 - $6,000. From the BS they are giving you it sounds as though they know they are at fault. However, even if you can find another lawyer to represent you they will not do it for free.

The at-fault lawyer can put up many roadblocks that cost them nothing more than their time, yet will cost you thousands of dollars in fees to overcome.

A pragmatic approach might be to make a claim in the small claims court. I don't know the system in AB but in BC it is a reasonable option. It costs very little. Judges in the small claims courts can sometimes take a dim view of legal professionals who misuse their power and knowledge. IMHO you will have as much chance of getting some recompense in the small claims court as you would spending many tens of thousands of dollars going to full trial.

Also make a complaint to the Law Society. http://www.lawsociety.ab.ca/lawyer_r...omplaints.aspx