A property was listed with the following reference: “Income Generating Solar Panels”. No additional information was provided about the Lease or Panels.
Solar Panel Lease
- Portion of the roof
- 20 years
- Company pays Owner $560.00 per year
- Company collect the revenues from the sale of all power generated by the Panels.
- end of lease, ownership of the Panels would be transferred to the Seller or then owner of the Property
- If the Property was sold prior to the expiry of the 20-year term, the Lease needed to be assigned to the new owner, or the Panels would need to be bought out, or removed, at significant cost.
APS: February 18, 2016
Closing: May 2, 2016
Neither the Seller nor Registrant A disclosed the existence of the Lease.
The APS mentioned nothing about the Lease needing to be assigned to the Buyers nor did the APS include any provisions whereby the Buyers would be able to confirm the status of the Panels.
At the time they entered into the APS, the Buyers were of the view that the Seller had owned the Panels outright.
The Goofing Around
Prior to closing, the Buyers discovered that the Lease needed to be assigned and took the position that the Seller was obligated to buyout the Panels, as it was not included in the APS.
The Seller refused to buyout the Panels but gave the Buyers the option to rescind the APS. However, the Buyers decided to close the transaction. The Buyers subsequently experienced difficulties with the Seller executing the required documents to transfer the Lease to them.
Naturally, the Sellers became less cooperative after the property rose in value from February to May 2016. The “time” to deal with the issue was at the time of negotiating the original Agreement of Purchase and Sale.
Likely, these solar panels were fixtures. The offer to rescind didn’t make any sense, since the value may have escalated by $100,000.00.
Prior to submitting an offer the Buyer’s agent contacted the Listing agent to determine whether there were additional details that should be put included in the offer. The Listing agent stated there were not.
However, the Buyer’s agent acknowledged that she did not make a specific inquiry into the status of the Panels.
The Buyer’s agent failed to comply with the Code of Ethics as follows:
She did not
- make a specific inquiry to confirm the status of the Panels, and/or
- did not include provisions in the APS to address the status of the Panels, contrary to sections 4,5, and 21(1) of the Code of Ethics.
These were contrary to:
4. Best interest
5. Conscientious and competent service
21 (1) Material facts
RECO assessed $6,000.00 fine and imposed obligation to take two 90 minute Courses over the next 365 days from the decision date 26 August 2022.
When you see something like this in the MLS, ask some questions. Sometimes there’s a lazy agent, and sometimes there is a deceptive agent.
Ask to have the agreement produced. Are the panels still on the roof? Who owns them? Are they fixtures or chattels? Don’t assume and proceed. Find out the facts and proceed!
Brian Madigan LL.B., Broker