It is not uncommon for and elderly person to live alone in their home. When they “go missing” for a few days, then the inquiry begins. It is directed to family and close friends.
Sometimes, a week to 10 days can pass before the body is discovered. The body has set into decomposition mode which is unpleasant, to say the least.
Now, we come to the sale of the house. This is troublesome. Not everyone likes this. In fact, there is absolute abhorrence among certain ethic communities,
Is there a legal obligation to disclose this fact?
The Seller, likely the Estate of the deceased in this case has no legal obligation to disclose this. That is restricted to known latent defects which would render the premises unsafe or unfit for human habitation. This situation does not meet that threshold.
Next, what about the duty of the Listing Agent? Perhaps, if they knew about this, but if the Estate concealed the information, this might not be known. Also, the Listing Agent must follow their own client’s instructions.
What about the Buyer’s own Agent? This agent is under a duty to investigate, determine and verify the material facts, but naturally rather than simply a general inquiry, the sensitive buyer should indicate this matter of concern to their own agent. Why wait until later?
How do you find out?
There are two methods here:
- Due diligence investigation, and/or
- Put it in the Contract.
Due Diligence Inquiry
In this case, Google is your friend. Search the address. Search the name of the deceased. Add the word “obituary” to the name search. If it says “passed away peacefully at home”, now you know.
Ask the neighbours. They usually have a pretty good idea about what happened.
Finally, directly ask the Estate Trustee or ask the Listing Agent. The response must be truthful and not misleading, although it need not be accurate or correct since there is no obligation to disclose this information. It could be evasive or a simple refusal to respond.
So, a refusal to answer is fine. A statement that the person believes that the deceased passed away at the hospital would be false and intended to deceive. That statement would be actionable.
Contract Alternatives (Warranties and Terms)
- Warranty. The Seller warrants and represents that there have been no deaths, murders, suicides or unnatural violent injuries to persons in and about the property since the Seller acquired ownership.
- Warranty. The Seller warrants and represents to the best of his knowledge and belief that there have been no deaths, murders, suicides or unnatural violent injuries to persons in and about the property since the Seller acquired ownership.
- Term. The Seller states that there have been no deaths, murders, suicides or unnatural violent injuries to persons in and about the property since the Seller acquired ownership.
- Term. The Seller states to the best of his knowledge and belief that there have been no deaths, murders, suicides or unnatural violent injuries to persons in and about the property since the Seller acquired ownership.
You will see that the same issue is addressed above in 4 different ways, ranging from best to least. It is more likely that a Seller will sign if the words “to the best of his knowledge and belief” are added.
Written as a warranty, there is a contract obligation and the remedy is damages. There is still a requirement to close the deal, but compensation for this matter will be awarded by the Courts.
The term statements simply amount to “representations”. This is not a contract obligation, per se, but one which would be addressed in both contract and tort. Here, we are simply dealing with misrepresentation.
Contract Alternative (Conditions)
A condition is a requirement of the contract. If it is not satisfied, fulfilled or waived then, the deal will not close.
So consider addressing the issue as follows:
“This offer is conditional on the Buyer satisfying himself that there have been no deaths, murders, suicides or unnatural violent injuries to persons in and about the property during the relevant time period (stated or defined time or since the Seller acquired ownership) to be determined by Buyer with information, facts and investigations satisfactory to the Buyer in the Buyer’s sole and absolute discretion. Unless the Buyer gives notice in writing delivered to the Seller personally or in accordance with any other provisions for the delivery of notice in this Agreement of Purchase and Sale or any Schedule thereto not later than the condition time, that this condition is fulfilled, this offer shall be null and void and the deposit shall be returned to the Buyer in full without deduction. The Seller agrees to co-operate in providing access to relevant information and provide appropriate authorizations to third parties concerning the property, if requested, for any investigation required for the fulfillment of this condition. This condition is included for the benefit of the Buyer and may be waived at the Buyer’s sole option by notice in writing to the Seller as aforesaid within the time period stated herein.”
The above condition is written for the benefit of the Buyer. It offers the best contractual protection, since the Buyer may cancel the deal and withdraw.
The difficulty with the warranties and terms is that there is only a monetary compensation and this might not be sufficient.
And, don’t forget, you can put it in twice, once as a Condition and later as a Warranty. This is the best of both worlds!
Who wants to the master bedroom and constantly have to think about Reeva Steenkamp?
Brian Madigan LL.B., Broker