Do you have kids?
I do. Two of ’em.
The regular readers know this, and the long-time readers can recall a time when I wasn’t a hokey, 40-something dad.
Older folks love to say, “I was young too, once.”
I remember rolling my eyes at those folks, just as many people would do the same to me now. Just ask Matthew and Tara, who have the pleasure of working with me on the TRG team, just how amazing it’s been to experience countless stories of mine that begin with, “When I was your age…”
But having said that, I want to introduce today’s topic by providing you with an analogy.
This analogy, of course, will really hit close to home with those who have children…
Have you ever found your child, abnormally quiet, unusually polite, offering a forced smile, saying, “Everything’s fine! Nothing to see here!”
You know where this is going, right?
Consider this another example of, “Me think thou doth protest too much,” that only those with children fully understand.
Something is clearly wrong. But in their attempt to convince you otherwise, they arouse even more suspicion than there would have been if everything were okay.
Children do that. They think they can outsmart us, and it’s really, really cute.
Dogs do that too.
For the best example of this, let me search the archives for my favourite photo of my dog.
Favourite.
Ever!
We got her in 2012 and I’m sure we have thousands of photos of her, but this one so very much my favourite that I turned it into a meme:
Look at that face!
She’s literally saying, “Hey, how’s it going? What? What mess? This? Oh, geez, I hardly noticed. But it wasn’t me if that’s what you’re thinking! Why would you think that?”
But what if you came home after work and your dog, or child, or spouse was standing in front of the front door of your home, saying, “Don’t go inside. There’s nothing wrong inside, but just don’t go in there.”
Would your spidey-sense begin to tingle a little?
Mine certainly would…
Last fall, I sold a home a young couple who we’ll call Michael and Cindy.
I don’t want to play favourites, but Michael and Cindy’s purchase was one of my favourite from 2024 because they secured such an incredible deal on the home.
You know those houses that are listed for sale five times, by three agents, over fourteen months?
They bought one of those.
And by the time we went to purchase the property, let’s just say that leverage was on our side!
First listed for sale for a whopping $2,495,000, the price was all the way down to $1,999,999 by the time we decided to make our offer.
The negotiation process is a whole other blog post, and it was great. We left, came back, left again, and eventually the seller accepted a price that he “never” would have accepted at the onset, says the listing agent.
Michael and Cindy paid $1,820,000 for the house in the end and were very happy!
It was a great house! The renovation was top-notch and the quality of workmanship was surprisingly A+ all the way.
The house was also vacant, on account of being a “flip,” and thus we didn’t have to worry about any wear and tear on the home between the time of purchase and the closing date, which was a rather lengthy four months.
Two weeks after we purchased the home, we went back to the property to view the house with Michael and Cindy’s parents, and this counted as one of our “buyer visits” per the Agreement of Purchase & Sale.
For those who have never translated in real estate before, this is a standard clause to include in Schedule A of any Agreement of Purchase & Sale:
Seller agrees to allow the Buyer visitations to the property on three (3) occasions at mutually convenient times before closing.
We call this the “buyer visit clause” and it’s quite standard. There are variations, but it’s widely understood that the buyers will want to visit the home that the purchased at some point, or several points, before closing.
One week after we scheduled our first “buyer visit,” we scheduled our second one to visit the home with a tradesperson who was going to measure for window coverings.
And one week after that, we used our third “buyer visit” to return to the home to get a quote for painting.
That was that.
Legally speaking, we had used all three of our “buyer visits” to the property, per the clause in our Agreement.
But what if we wanted to go back again?
Common sense would dictate that the house is vacant so there’s no problem with that.
Common courtesy would also dictate that the request wouldn’t be unreasonably denied.
In fact, through over twenty years in this business, I have never experienced a situation where a seller or listing agent denied a request for a fourth buyer visit, even though it would be their legal right.
In any event, three months passed and the closing date was approaching.
I emailed the listing and said, “I know the house has been vacant and it’s now winter, so have you been in the house to check that everything is okay? No pipes bursting, no water in the basement, no surprises on closing?”
I also asked if the garage had been cleaned out, since it was full of construction debris, and we had already asked about this twice.
The response that I received was somewhat troubling:
“I haven’t heard from the seller. The lawyers can deal with any issues.”
Alright.
That’s not exactly a vote of confidence, and honestly, all this woman had to do was say, “Hey, David! Everything is fine, looking forward to a smooth final closing!”
But she didn’t.
I emailed back and said, “Can you go check it out before closing?”
She did not reply.
So I went and booked a buyer visit on the home and figured that I’d head over with Michael and Cindy, but guess what?
The buyer visit was denied.
Before you suggest, “Two wrongs don’t make a right,” there is an exception to the buyer visit rule.
Several exceptions, in fact.
The first would be common sense.
The second would be common courtesy.
The third would be mitigation and proactivity, specifically getting out ahead of issues before they arise.
But the fourth and most important is one that I’ll discuss in a moment, just hang on for a sec…
I called the listing agent and she didn’t answer.
I left her a voicemail and she texted me later that day:
“You’ve already been through the house three times. There’s no need to go back. You’re not allowed.”
I tried calling her but she didn’t respond.
I told her, “Nobody has been in the house for three months.”
After all, don’t we all subscribe to this idiom:
Failing to prepare is preparing to fail.
Nowadays, there are more issues upon closing than ever before. Countless rental items associated with houses that weren’t known or weren’t disclosed, chattels removed from the home that were in the Agreement of Purchase & Sale, and debris left behind that requires junk removal – just to name a few.
I believe in being as proactive as possible.
Unfortunately, the listing agent did not.
Responding to my comment about the house being empty for three months, she said, “Doesn’t matter. Seller won’t allow you access.”
That was yet another red flag.
Simply put: why not?
Was the seller just being a jerk? Or was he hiding something?
I told the listing agent, “This house is empty. There’s nobody to disturb. We need exactly two minutes to walk through, ensure the property is being delivered in the same condition in which it was purchased, and satisfy ourselves. To deny this request is to be unreasonable, by definition, and it will simply raise more questions.”
The agent wrote back, “You have used your three buyer visits. That’s it. It’s done.”
The more she protested, the more concerned I became.
Common sense, common courtesy, mitigation, and proactivity were not playing a factor in her decision, or that of her seller’s.
But here’s the thing:
Outside of a “buyer visit” included in the APS, the buyer does have the right to a final inspection.
There is a very old (if you’re my age…) Ontario Superior Court decision called Harkness vs. Cooney that lawyers reference all the time in situations like this.
The case determined that the purchaser has a right to a “final inspection” to ensure that the property is being delivered in the same condition in which it was purchased.
More importantly, the case concluded that there is no need for a special clause to this effect in the agreement.
From the court decision:
“I raised the matter of executory and executed contracts. It seems ridiculous that the purchaser should have to move from his rights under the executory contract to the fewer rights he would have under the executed contract without having the right to inspect the premises while he was still in possession of such rights as the law gives him in an executory contract. It also seems ridiculous that he should have to complete the transaction and pay over his money before ascertaining whether or not he had been entitled to terminate the contract prior to completing it.”
The court determined that this was “common sense.”
Unfortunately, many sellers and listing agents out there today don’t have any.
The root of the court’s determination in 1979 came from other sections of the standard Agreement of Purchase & Sale, notably:
1) The property remained under control of, and at the risk of the seller from the time the APS is signed through the date of closing.
2) The property remained insured by the seller, to the benefit of the buyer, through the date of closing.
The decision also noted that the buyer would only be able to object to any deficiencies, defects, or deviations from the original Agreement of Purchase & Sale after the completion of the transaction, by which point the buyer loses significant rights.
Again, it seemed as though the court was basing its decision on “common sense.”
If this case isn’t enough to deem that the right to a final inspection is “implicit,” then I would offer a second court case:
This is a court case out of British Columbia where the buyer demanded access to the property before closing and the seller refused.
The buyer refused to close, and the seller sued the buyer.
From the court’s decision, I would highlight:
“I agree with the defendants that they had a right to inspect the apartment before closing and that the plaintiffs were in breach of clause 8 of the purchase contract.”
In this case, clause 8 refers to “providing the home in substantially the same condition as when viewed” by the buyer, before they purchased it.
Then comes the hammer, as far as I’m concerned:
“In my view, the right to inspect the apartment in these circumstances was implicit.”
Then an analogy that we can all relate to:
“Under these circumstances, I agree with the defendants that they should not be expected to hand over approximately $5 million without a closing inspection. This would be analogous to purchasing a dozen eggs without an opportunity to first open the carton to ensure none are broken.”
Surely there is no debate now, right?
Let me say it one more time: common sense.
Think hard enough, and I’m sure we can come up with a situation where a final visit to the property just isn’t possible.
I mean….
“Hey David, we close today by 5:00pm and you’ve requested a visit to the property, but it’s 11:10am right now and my seller’s mother is currently in the house, and she’s 103-years-old and completely immunocompromised, and she’s breathing from an oxygen tank, and we noticed that you actually spit fire when you speak…”
…sure. In that case, my bad.
But in the case of Michael & Cindy’s house, I would offer:
-We made the request five days before closing
-Nobody lived in the home and there would be no disturbance
-The house had been vacant for three months and it was -15 degree weather
Now, I would offer what I’ll call, “David’s Five Reasons For A Final Inspection”
1) Common sense
2) Common courtesy
3) Mitigation
4) Proactivity
5) Candian law
Surely there’s no debate? Maybe? One of you – with your hand raised – at the back – you’d like to speak?
I’m all ears…
So what happened with Michael and Cindy?
In my attempt to find some common ground, I told the listing agent to provide us with photos or a video of the basement, garage, and main floor, and that we would accept this as our final inspection.
She refused.
I escalated this to the buyer’s lawyers and they simply told the buyers, “You have to close today,” which was never in doubt, but they didn’t seem to be concerned.
So that’s when Michael jumped into action.
He went over to the house and looked through all the windows. There were no issues, at least from what he could tell, and he satisfied himself, Cindy, and the lawyers.
“David, that’s trespassing! Two wrongs don’t make a right!”
See how good I am at getting out ahead of your GOTCHA moments? 🙂
I’ll leave you with one last nugget:
Even if the buyer includes a clause in the APS that reads something to the effect of, “The Buyer hereby reserves the right to one final inspection of the property, irrespective of any ‘buyer visits’ included herein, before the date of closing,” keep in mind that the seller still has to agree and provide access.
So maybe an entire blog post about the legality of a final inspection is a moot point if the seller won’t agree to it?
I suppose it depends on your definition of common sense…
