Law Times

PAGE 10 FOCUS OCTOBER 31, 2011 • LAW TIMES Should sellers have to disclose gruesome histories? Lawyer says it's time to update Ontario laws to require more information BY DARYL-LYNN CARLSON For Law Times W hile some recent case law has at- tracted the inter- est of lawyers in the real estate fi eld, there's one area where they have no power to assist their clients. Th is is due to the fact that Ontario has no law requiring disclosure related to a home or condominium that has been the site of a murder or suicide that compels sellers to tell the buyer about the incident. In California, the vendor has to disclose a murder or suicide that has occurred during the previous three years as part of the property's history. Such a re- quirement, according to Ontario lawyers, can be an ideal way to handle sales of homes and con- dominiums that have been the subject of a murder or suicide. Bob Aaron of Aaron & Aaron in Toronto has dealt with clients who have encountered proper- ties that have a history of mur- der, suicide or arson. He says clients are surprisingly naive. "I am surprised that many people don't think this is im- portant," he says, adding he be- lieves Ontario should institute a law similar to California's to ensure people who are shop- ping for a home or condomin- ium are aware of the history of the property they're consider- ing buying. Aaron says he actually had one client who was considering purchasing a condo in down- town Toronto where the owner had died in the unit. When he asked whether it bothered him that the owner had done so, the client said, "No, not at all." In another situation, there was a home for sale that a cli- ent was interested in and the vendor ended up hanging himself in the garage. An- other of Aaron's clients was intent on purchasing a con- dominium where the tenant had committed suicide in the living room. "Th ere are many prop- erties that are stigmatized, and I believe it's important to let clients know that the property they are intending to buy is a subject of an inci- dent," says Aaron. He also points to a piece of vacant land in St. Catha- rines, Ont., that was the site of the Paul Bernardo mur- ders. Th e house is no longer there, but the land is for sale. Aaron wonders about prospective clients who are considering purchasing the property. "I would tell them that this was the property that the Paul Bernardo murders took Bob Aaron believes 'it's important to let clients know that the property they are intending to buy is a subject of an incident.' place and really, would you like to build a house there?" he says. Th e primary question is the extent to which buy- ers should be able to know about these types of situ- ations. "How much dis- closure should there be for stigma?" asks Aaron, who notes there isn't any law in Ontario that mandates that the seller disclose the history of the home if there was a murder or suicide there. Aaron is adamant that such a law would benefi t Ontario homebuyers and help them determine any conditions on the pur- chase if in fact it was the site of a murder or suicide. "I wouldn't want to own a building where someone had died, but the question is: should there be disclosure of these kinds of incidents by law? I think there should be a law." Also aff ecting buyers is an A CONCISE STARTING POINT FOR OCCUPIERS' LIABILITY LITIGATION CAUSE OF ACTION: OCCUPIERS' LIABILITY JANET E. SMITH, B.A., LL.B. Get a succinct overview of occupiers' liability law with this single new resource. Incorporating the latest case law and legislative developments, this primer explains how the principles of Occupiers' Liability Law apply in practice. 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Ste- ven Pearlstein of Minden Gross LLP in Toronto mentions the case of Citi Cards Canada Inc. v. Pleasance. Th e case dealt with a writ of execution for an outstanding mortgage. Pearlstein says a writ of ex- ecution is like a second mort- gage that provides the appli- cant with a lien. As well, there's a sheriff involved to execute the writ. But in Pearlstein's view, the law related to writs of exe- cution is outdated. "Th is is like ancient common law," he says. He notes that privacy leg- islation such as the Personal Information Protection and Electronic Documents Act is so outdated that the applicant, Citi Cards Canada, couldn't fi nd out who the lender was for the mortgage that was out- standing. Th e matter went to the Court AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 of Appeal, which, in reasons written by Justice Robert Blair, determined that "the disclosure that is 'required by law,' as con- templated by s. 7(3)(i), must be required by law independently of PIPEDA. PIPEDA itself does not require disclosure in the commercial context: rather, under the section it creates a framework in which personal information — otherwise pro- hibited from being disclosed — may be disclosed if one of the exemptions applies. I know of no law requiring a fi nancial in- stitution to disclose mortgage statements to an unsecured judgment creditor seeking to enforce its remedy by way of sheriff s' sale in the absence of default under the mortgage and steps taken by the mort- gagee to enforce the mortgage by way of notice of sale, and counsel have not put forward any." "Th is is very problematic for buyers," says Pearlstein. "It is a signifi cant precedent." He adds that any lawyer rep- resenting either a buyer or a seller should be aware of the case. www.lawtimesnews.com

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