If it matters to the buyer, get it in writing

When it comes to real estate deals, the devil is in the details. If it’s important to you, get it in writing in the contract, as these questions from readers highlight.

Q: The listing said that the kitchen counters were granite. I found out after moving in that they were ceramic. Can I sue? There was nothing about this written into the contract.

A: In every real estate contract there is a standard section called the “Entire Agreement” clause. It says only things expressly stated in the contract in writing are guaranteed. This means that if a clause is not included, it didn’t matter to you.

In this example, the buyer would likely not be able to sue the seller. Many listings contain qualifications that say that buyers must independently verify all information. The lesson is that if there is anything in a listing or ad about a property that is important to you, make sure it finds its way into your agreement.

Q: The seller took the TV bracket when they took the TV and now there is a hole in the wall. The TV was not included in the deal. Does this mean that they could take the bracket as well?

A: While most lawyers will tell you that a bracket screwed into the wall becomes a fixture and cannot be removed, a judge still may look at the intention of the parties. If the seller can show they didn’t intend to make the TV or the bracket a permanent attachment, they may have an argument that they could remove the bracket as well. Since it is not worth going to Small Claims Court to fight over a $150 bracket, it is best to properly include this in your agreement in the first place, to avoid confusion later.

Some agents include a clause to try and make this clearer by saying that “all existing flooring & floor coverings, drapery tracks, ceiling fans & fixtures, built in appliances, bathroom mirror(s), heating-ventilating-air conditioning equipment, central vac and accessories and all other items secured by means of nails, screws, plumbing, wiring, ducting and related accessories which are now on the property are to be included in the purchase price except items which are leased or rented and those specifically listed herein.”

The clearer you are, the less likely you will need to go to court later.
Q: I owned one home but sold it over 20 years ago. (If I buy a house now) am I still eligible for the Ontario Land Transfer Tax rebate?

A: No. The rebate, to a maximum of $2,000, is available to first-time home buyers who have never have owned a home anywhere. Your spouse cannot have owned a home while they were married to you. The same eligibility applies for the City of Toronto Land Transfer tax rebate, which is a maximum of $3,725.

Understand the amount of land transfer tax you have to pay before you sign any real estate agreement, as it can add on average an additional 1 to 2 per cent to your purchase price on closing.

Mark Weisleder is a Toronto real estate lawyer. Contact him at [email protected]