Right of Inspection Prior to Closing

The Ontario case that is quoted frequently is the 1979 case of Harkness v. Cooney.

After it was pronounced most lawyers accepted the fact that there was a common law right of inspection before closing, even though one had not been specified in the Agreement of Purchase and Sale.

That was the case for decades until a few lawyers took a very technical position on this in the early 2000’s and said that the case was not a binding precedent. While that may be true, it is nevertheless persuasive. In 2014, it was accepted with approval in a BC case. That case set a precedent in BC but not in other Provinces.

So, for Ontario real estate agents, best practice is to specify the inspection requirements as a specific clause in the Agreement of Purchase and Sale.

Brian Madigan LL.B., Broker


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