Disclose presence of felons: Court

By Romana King on May 31, 2011
Estimated reading time: 2 minutes

A Bracebridge, Ont. couple is challenging the application of caveat emptor (buyer beware) stating the seller they purchased their home from should have told them about a convicted paedophile living on the street.

It’s every parent’s nightmare: living across the street from a convicted paedophile. But can real estate law compel a seller to disclose the criminal history — however distasteful — of potential neighbours? According to a recent Ontario ruling sellers could be responsible for disclosing this type of information. And that’s worrisome. Under real estate law there is a principal known as caveat emptor: buyer beware. It requires sellers to disclose latent (aka: hidden) defects that can render a property unfit for habitation. (Under the same principal sellers are not required to disclose information that a reasonable inspection could detect.) So, when a young Bracebridge family (with two young children) moved into a home across the street from a man who was convicted of possessing child pornography 10 years earlier they were horrified. What made it worse, from the buyers perspective, is they allege the seller (and in fact the entire neighbourhood) were aware of the man’s past. For this young couple, then, the knowledge of a paedophile living across from their children rendered the home unfit for habitation. And they took the seller to court. The crux of the problem, then, is whether or not knowledge of a person’s criminal past can be considered a latent defect — a defect not readily observable through a reasonable inspection. Unlike in the U.S. — where neighbourhoods are notified of convicted sex offenders re-entering society and living in their vicinity — Canadian police and court services are not required to disclose this information. (A quick call to the Greater Toronto Area Police Service confirmed that the only way to obtain this type of information would be through a Freedom of Information Act request.) According to the court ruling the buyers may now proceed with a trial to determine if caveat emptor applies to their situation. But until that court ruling, all potential home sellers could be held responsible for not disclosing the criminal activities of their neighbours. Could we end up living in a police state? (And as Sublime put it: the situation is getting grave.)