This presents problems whenever a Buyer might run into an uncooperative Seller, Listing agent or Seller’s solicitor.
Only the Buyer can go through, not anyone else. It is realtively short in duration and is restricted to the limited purpose of ensuring that there has been no apparent damage caused by fire, flooding or otherwise.
In order to avoid potential disputes, it would be much better to have an improved and broader clause in the Agreement of Purchase and Sale rather than simply relying upon the Harkness v.Cooney case. In contested situations, I have previously brought a Motion in Court pursuant to the Vendors and Purchasers Act. I only had to do it on three occasions and every time, the Seller caved in and allowed the attendance. The problem here is that the legal fees can be costly, whether or not the Motion proceeds, so it’s a relatively rare remedy.
So, for next time, spend a few minutes and draft up a good clause which will enable you do attend, after the Seller has vacated, with others you may invite and with provision for a holdback should there be any apparent damages.
Brian Madigan LL.B., Broker