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seller did not disclose/lawyer did not find issue with house

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  • Jun 7th, 2019 11:09 am
Jr. Member
Mar 17, 2012
104 posts
8 upvotes
Eastern Ontario

seller did not disclose/lawyer did not find issue with house

We purchased our house last August. One reason for buying where we did was because taxes are lower and we could have a fire pit in the back yard. The fire pit was something that was really important to me. My hubby called the township on Monday to ask about a modification we wanted to make to the berm (a railroad used to run behind the house built in 2008--we are part of a large subdivision) and the berm was to baffle the sound) in our backyard.

Our plan was to flatten it a few feet in order to put a fire pit area there) and he was told we absolutely cannot touch the berm and that this would have been disclosed with our purchase agreement. It was not. The seller did not disclose. We talked to the lawyer and he said nothing was registered. However, hubby went to the township office and got registered documents where it states that the berm cannot be touched.

We feel that the lawyer should have discovered this document and also the seller had a responsibility to disclose this information. Is there any recourse for us? Are we just stuck making do? It's possible that in the next few years when CN decided what to do with the property all of the restrictions could change.
39 replies
Deal Addict
Mar 3, 2018
3475 posts
3994 upvotes
GTA
Was this issue something that was addressed at the time of purchase. Such as a clause in the purchase agreement. I am not sure how the seller is responsible. It was your agent that drafted the terms of the purchase agreement that is offered to the seller. The information was public record.
Last edited by DaveTheDude on Jun 5th, 2019 5:25 pm, edited 3 times in total.
Deal Addict
Nov 16, 2011
1535 posts
1256 upvotes
Hamilton
Is this berm part of your property ??

Actually the berm sounds as if it is CN's property and therefore nobody should be interfering or modifying it without the permission of CN.

If it is not on your property, I am not sure what the seller was supposed to disclose.

Regardless, if it was on the title, your lawyer should have picked it up. But again, you have the situation that if the berm is on CN's property, nobody should change the berm without permission of CN.

So, put your fire pit somewhere else in the back yard or buy one of those self contained ones that don't take up too much space.
Jr. Member
Mar 17, 2012
104 posts
8 upvotes
Eastern Ontario
To clarify--the berm is in our back yard. We were not aware there was an issue until this week. It was not on the title as far as we know. There was no mention of it at all during buying process.

The berm is the total width of the back yard and starts about 20 feet from house/15 feet from deck.
Deal Fanatic
Feb 4, 2010
7156 posts
7137 upvotes
I don't think it was seller's responsibility to disclose this unless you specifically asked. I mean why would they - they probably didn't know either and probably had not intention of touching it....and honestly, why would you want to as it's for sound barrier? Then you're going to complain about that. At any rate, my advice is not to stew about this or let this take way from from your own as there's not much you can do about it at this point. Instead focus on what you can do. I'm not sure I understand why you need to flatten on the berm in orddr to put in a firepit...a how of a firepit are we talking about? Is there no other place where you put it?
Deal Addict
Jan 28, 2007
2321 posts
1676 upvotes
SW Ontario
A good Real Estate lawyer should have found this, or at the very least that there was restrictions on part of the property, assuming the berm is actually on your property, which it may not be. We purchased another property last year, and there was items that the seller (builder) didn't disclose that our lawyer found and was quick to fire very direct responses back to the seller.
I'd rather be outdoors camping, kayaking, and mountain biking ...
Jr. Member
Mar 17, 2012
104 posts
8 upvotes
Eastern Ontario
There is not sound issue --no railroad anymore as it was removed.
Deal Addict
User avatar
Jun 12, 2008
3759 posts
1397 upvotes
Ancaster
I doubt the seller knew what the status of the berm would be.
Deal Expert
Feb 7, 2017
27765 posts
27802 upvotes
Eastern Ontario
What’s your survey say ?

Not uncommon for one’s property to include something owned by by someone else..

Known as an EASEMENT or RIGHT OF WAY ACCESS (Curbside City Land - City Storm Sewer / Drainage - Utilities Easement etc)

If the Berm is on what you consider “your property”... but the survey marks it as belonging to CP Rail * or someone else, then indeed it’s not yours to do with as you please

* NOTE - Doesn’t matter if the railway is there or not... if the land / right of way is owned by CP Rail.
They can do whatever they want with it down the road ... put in another rail line, or turn it into a Recreational Path / Bikeway
Have been similar cases elsewhere in Canada, where CP did stuff with old rail lines

The fault here IMO lies not with the Seller
But with YOUR REAL ESTATE AGENT
Who should have gotten you a copy of the survey
And then explained what an Easement / Right of Way Access is
And how it impacts your property

Examples of Easement issues I am aware of:

City Curbside Easement ... City can do as they please with this land. They can plant on it, or remove trees currently found on it. This is also where you’ll often find Canada Post Supermailboxes erected, and property owner has no say in that either

City Storm Sewer / Drainage Easement ... City can be very strict about keeping these drains open, and the grade / slope / landscaping around them

Utilities Easement ... Hydro, Cable, Telephone etc. One cannot build over the Easement. And must provide 24/7/365 access to utility employees with proper ID to check or work in the easement
Jr. Member
Mar 17, 2012
104 posts
8 upvotes
Eastern Ontario
The berm is absolutely ours. It IS our backyard. Every property along the old railroad has a similar berm. Our yard is not unique. There are wood fences on both sides and one chain link fence at the back behind the berm. We cannot alter the chain link fence either. The old railway is now a walking/biking/ATV trail which of course is just fine with us!
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Jr. Member
Mar 17, 2012
104 posts
8 upvotes
Eastern Ontario
The fire pit has to be 15 feet from a combustible structure and 10 feet from neighbour's house. We have discussed putting the fire pit closer to the house but have to measure ditance to make sure we are complying with regulations. The hill may be a detriment to that.
Last edited by momofmen on Jun 5th, 2019 6:24 pm, edited 1 time in total.
Banned
User avatar
Nov 28, 2016
22791 posts
3321 upvotes
Out west
If you didnt ask the seller, why would they need to tell you. If they used it as is for a decade or whatever, and you have different plans why is it up to them to let you know.

When you sell a house, you answer questions that are asked. How can you supply answer to questions you dont know about?

What does the RPR say, it should show the property lines
Jr. Member
Mar 17, 2012
104 posts
8 upvotes
Eastern Ontario
I can agree the seller didn't need to tell us however, I feel the lawyer shoukd have found this document as it was registered.

We are going to figure something out anyway it was just a little frustrating to find this out now. We will just have to change our plans. Such is life.
Deal Guru
User avatar
Mar 23, 2008
13006 posts
10009 upvotes
Edmonton
momofmen wrote: I can agree the seller didn't need to tell us however, I feel the lawyer shoukd have found this document as it was registered.

We are going to figure something out anyway it was just a little frustrating to find this out now. We will just have to change our plans. Such is life.
I would agree that the lawyer probably should have found the document, but even if it had been found a week before the transaction, what resolution would you have asked for? It wouldn't have been grounds for cancelling the transaction, unless you were willing to forgo your deposit and possibly get sued for not following through on your transaction.

Do you have title insurance?

C
Jr. Member
Mar 17, 2012
104 posts
8 upvotes
Eastern Ontario
Yes we do have title insurance.

We will figure out a solution for the yard. I just have to adjust my expectations. Smirking Face
Banned
User avatar
Nov 28, 2016
22791 posts
3321 upvotes
Out west
momofmen wrote: I can agree the seller didn't need to tell us however, I feel the lawyer shoukd have found this document as it was registered.

We are going to figure something out anyway it was just a little frustrating to find this out now. We will just have to change our plans. Such is life.
That I 100% agree on, that's why we pay the money for these types and RE agents, so we are told right? They should do the job they are paid to do. So we don't have to worry about the behind the scenes stuff.
Deal Guru
Jan 25, 2007
12694 posts
7861 upvotes
Paris
momofmen wrote: The fire pit has to be 15 feet from a combustible structure and 10 feet from neighbour's house. We have discussed putting the fire pit closer to the house but have to measure ditance to make sure we are complying with regulations. The hill may be a detriment to that.
In our rural area, a fence counts as a combustible structure. So 15 feet from either side leaves not a lot of space.

Here it’s actually 10 metres which is really hard to do in town. So instead everyone just does it and the fire department only comes based on a complaint basis.

Edit: I thought they changed it. Its 15 metres now. And very specific...
the fire is at least 15 metres from any building, structure, hedge, fence, vehicular roadway of any kind or nature, overhead wiring or any property line, unless otherwise approved by the Fire Chief or within a site of a permitted campground;
Deal Guru
User avatar
Mar 23, 2008
13006 posts
10009 upvotes
Edmonton
momofmen wrote: Yes we do have title insurance.

We will figure out a solution for the yard. I just have to adjust my expectations. Smirking Face
You could investigate whether title insurance can help you in this case. It may be something as simple as requesting a variance from the existing easement. It might be compensation on your legal fees as your lawyer didn't follow through with checking things thoroughly enough. It can be quite a broad coverage. Basically, it's coverage to "make you whole" when something related to your title is screwed up. As in this case. The difficulty (particularly in your case) is trying to identify your actual financial loss.

https://www.integratedmortgageplanners. ... ld-buy-it/

C
Sr. Member
Jun 10, 2008
523 posts
410 upvotes
Halton Hills
I totally would have just flattened out the area without thinking of calling the township. It wouldn't have ever crossed my mind. I must be desensitized from seeing all my neighbors (and me) with illegal decks, basement apartments, widened driveways and sheds.
Deal Addict
Jan 28, 2007
2321 posts
1676 upvotes
SW Ontario
thisischris wrote: I totally would have just flattened out the area without thinking of calling the township. It wouldn't have ever crossed my mind. I must be desensitized from seeing all my neighbors (and me) with illegal decks, basement apartments, widened driveways and sheds.
Your not alone on this thinking Winking Face
I'd rather be outdoors camping, kayaking, and mountain biking ...

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