By Jayson Schwarz
Today I intend to write about a number of different matters and to try and answer some of the questions that have come in to the magazine.
DO NOT BE AFRAID!!! Builders will listen to your requests to amend and change certain
parts of their Agreements. The better builders are simplifying their Agreements and
putting the clauses that are most often dealt with right up front order to get the deal
done. Remember you are not buying a new outfit, you are making the most important purchase
of your life, your new house! Don't be a woossy!!!
THE STRIKE - Remember that the extension period under the Ontario New
Home Warranty Program Act (ONHWP) effectively freezes when you are advised in writing of
delays due to strikes. When the strike resolves the time periods will again begin to run.
Your lawyer can find this information out for you. Remember this is not the builders'
fault.
A letter was recently received by Miss C. In this letter she indicated she had entered
into an Agreement of Purchase and Sale (the Agreement) for a semi-detached home and the
appearance was a critical issue to her. As a result she caused a copy of the picture to be
attached to the Agreement and signed. Later she ended up with a balcony that she believes
to be ugly and unsightly and not what she bargained for. Miss C. should consult with her
lawyer and have him/her review the substitution provisions of the ONHWP to determine if
the balcony is a key element, as significant changes cannot be made with the purchaser's
consent and she would (should the decision be in her favor) be entitled to terminate the
Agreement, regain her deposit and/or claim damages to a total of $20,000.
Doug asked about the clauses in the Agreements relating to installing fences, gardens and
landscaping in the first year of owning a new home. Let me take this one more step and
mention finished basements. The reason exterior work is precluded in the first year is
based on certain factors. First, the property will settle and drainage issues are
critical. The builder must ensure the drainage patterns he/she had approved originally
pass muster and that the municipality or region release him/her from their obligations.
Any change in the exterior can affect drainage. Further the builder may have to obtain
ingress or egress to repair or replace items for which he/she is responsible under ONHWP.
The basement reason is really simple. There you are with your beautifully finished
recreation room, when the house settles, a crack develops and water seeps in destroying
the insulation, the drywall, the carpet and your expensive stereo. In addition, how does
the builder then repair and how do you find the leaks in time? Don't finish for the first
year!
Mr. E. wanted to know if you could close with a bunch of deeds in order to reduce or avoid
Land Transfer Tax by getting under the minimums. This was an old ploy used years ago and
my comment is simply, it is trying to do indirectly what you cannot do directly and as
such improper. Any lawyer using it for this purpose would probably be guilty of
misconduct. Bad Mr. E., do things the right way.
Miss CF can't decide on financing scenarios. The best thing I can ever recommend to
everyone is to ensure your financing is in place before you firm up your deal. Don't get
caught. Try to make the best deal you can - and Miss CF, a bird in the hand is worth two
in the bush.
Well that does it for this issue of New Homes and Condos. Please remember to make sure
when you negotiate that Agreement to include a clause that says you have a few days for
your lawyer's review and see your lawyer early! Don't wait until it's time to close
because then there is nothing that can be done to amend the Agreement.
For more informative articles, click on Legally Speaking on the left.
Jayson Schwarz is a senior partner with the firm Schwarz Gillen Barristers and Solicitors.
He can be reached at (416) 486-2040.
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