In view of the fact, that over the years considerable litigation has arisen in Ontario over property description, it may again be the time to revisit an article written by lawyer Bob Aaron, LL.B. at the following website:

http://www.aaron.ca/columns/2006-03-11.htm

The listing agent, in performing their due diligence and to avoid any surprises at the last minute, might consider reviewing their sellers documents and in particular the reporting letter received by the seller from their lawyer at the time they originally purchased the subject property and which may disclose issues like easements, right-of-ways, and private or mutual drives and any encroachments that their lawyer may have discovered in their search of title.

In the event that there are issues that may materially affect the property, the listing agent has a duty to disclose.

In order to avoid a dispute in relation to property description and/or dimensions, etc. plus acknowledgement of disclosure, the listing agent might consider giving a copy of the relevant document, be it a survey or reference plan, etc. to the buyer to attach to their offer and worded as follows:

fronting on the West side of ............ in the City of ............., and having a frontage of 50 feet, by a depth of 100 feet, and legally described in Schedule "A" annexed hereto and consisting of not less than 500 square feet, as now shown outlined in "red" on the Plan of Survey supplied by the Seller to the buyer, and upon which the buyer shall rely annexed hereto as Schedule "A" and forming part of this Agreement, and registered in the Registry Office for the Registry Division of .............. as being Lot No. .......... Plan No. ...........and (if applicable) providing for a private drive.

Note "supplied by the seller to the buyer" (Seller's Disclosure) A buyer's agent also has the same due diligence obligation to make the appropriate inquiries as well.

Ambiguities such as “More or Less” should be deleted as they result in litigation.

Buyer’s should be aware that surveys do more than just show the location of a building and other structures (fences, garages and decks) on a property. They graphically describe the seller's "extent of title" such as Lot size, dimensions and boundaries; plus items like easements, right-of-ways, and private or mutual drives. Only with a survey can a buyer know if the property encroaches, or is being encroached upon. Without a survey, municipalities can't advise if the building complies with it's zoning bylaws, including side yard, front yard and rear yard "setbacks" ( the distance from building to lot line).

Lawyers have a form whereby the buyer acknowledges having been advised by their lawyer to obtain a survey, otherwise their lawyer’s "opinion on title will be subject to such defects as could have been disclosed by a current survey and that the buyer is content to have their solicitor's opinion on title so qualified."

IMPORTANT NOTICE: This information is provided as basic educational information by the author and is not a substitute for the advice of an expert and/or the advice of a Lawyer. There is NO representation as to legality, accuracy, correctness of the herein information and the reader is strongly urged to consult a lawyer in the relevant jurisdiction to ensure accuracy before acting on this information.