Real Estate Litigation Articles

Ensure your home purchase deal includes an inspection immediately before closing

By Bob Aaron
Toronto Star contributing columnist.

Bob Aaron

It’s the night before closing, the seller has moved out and the buyer wants to do a last-minute inspection to ensure there’s been no damage since the last visit.

Is she or he entitled to a day-of-closing inspection if there is no clause in the purchase agreement allowing a final check?

The court case most often cited as support for a right to a final inspection is Harkness v. Cooney, a decision of the Waterloo County Court in 1979.

Before the closing of what the court called a “simple and routine residential purchase and sale,” the buyer’s lawyer asked the seller’s lawyer for a final inspection on the morning of closing.

A standard clause in the offer said that the property was at the seller’s risk until closing, and if there was any substantial damage, the buyer could either terminate the deal or close and take the proceeds of any insurance.

The lawyer for the buyer brought a successful court application which gave his client a right to the inspection. Judge Francis Costello held that “It … seems ridiculous that (the buyer) should have to complete the transaction and pay over his money before ascertaining whether or not he had been entitled to terminate the agreement prior to completing it.”

The court case was determined under the Vendors and Purchasers Act which allows the parties to ask a court to determine a question arising out of a real estate contract. As a result, although its reasoning is persuasive, the court’s decision is not binding on any other judges.

The decision in the Harkness case was endorsed in a 2104 case in the Supreme Court of British Columbia. The dispute in the case of Chaston v. Este involved the purchase of a $5,150,000 condominium on the Vancouver waterfront, with a deposit of $500,000.

The purchase agreement required the unit to be in “substantially the same condition at the Possession Date as when viewed by the Buyer on April 12, 2012.”

Prior to closing, there was extensive work being done to the unit to remedy mould and fungal damage. The unit was a construction zone and not nearly finished.

The buyer was denied an inspection by the seller and refused to close. The seller sued to keep the deposit and also for damages, but the court — relying on the Harkness case — decided that the buyer was justified in refusing to close.

The court noted that the buyers were “implicitly entitled to inspect the apartment before closing.” The sellers were not allowed to keep the deposit.

In his decision, Judge Reginald Harris wrote, “I agree with the (buyers) 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

There are two takeaways from these cases.

The first is that there is no such thing as a “simple and routine residential purchase and sale.” Each purchase requires a high degree of due diligence.

And the second is that every purchase agreement should always contain a right of inspection immediately before closing.

Bob Aaron is a Toronto real estate lawyer. He is Certified by the Law Society of Ontario as a Specialist in Real Estate Law.

He can be reached by email at, phone 416-364-9366. Visit his website