Does a seller have to tell you if someone died in the house?

No Ontario law makes a seller declare a death in the home. Buyer beware is the starting point, so ask the question in writing before you sign an offer.

Nobody in Ontario has to hand you a form saying who died in the house. There is no statute that names deaths and orders a seller to declare one, and no box on the standard paperwork where it would go. What exists instead is a starting point set by the courts, a set of duties sitting on the agents in the deal, and one question you can ask in writing that changes the answer completely.

Is there an Ontario law that makes a seller disclose a death?

No. Ontario has no statute or regulation that names a death in a home and requires the seller to declare it.

The rules that govern real estate agents assume a seller's disclosure obligation rather than creating one. Section 22.2 of Ontario Regulation 567/05, made under the Trust in Real Estate Services Act, 2002, reads: "If a seller has a legal obligation to disclose a fact to the buyer and the fact is known to the broker or salesperson who represents the seller, the broker or salesperson shall disclose the fact to every buyer who expresses an interest in the real estate."

Read that opening clause. The whole rule turns on an obligation the regulation does not itself define. Whether a particular seller owes it for a particular fact is decided case by case, and it is a question for a real estate lawyer rather than for a listing agent.

What does buyer beware actually mean here?

It means the opening position is that the seller says nothing and you go and check.

In Krawchuk v. Scherbak, released 6 May 2011, the Court of Appeal for Ontario recorded the trial judge's starting point in these words: "in the absence of any warranties or guarantees as to the fitness of the property or home, the starting point for the analysis is the principle of caveat emptor". Buyer beware.

Two arguments were run against that starting point in the same case. The first was that the defects were latent and had been deliberately concealed by the sellers. The second was that they were "such as to render the home uninhabitable, dangerous or potentially dangerous".

Both of those are about the physical condition of the building. A death leaves the house exactly as it was, which is why this question sits outside the categories Ontario law has built up around defects, and why buyers keep getting different answers from different people.

Does your own agent have to tell you?

Your own agent has to go and find out, and then tell you.

Section 22.1 of Regulation 567/05 requires a broker or salesperson who represents a client to take reasonable steps to determine the material facts relating to the purchase or sale, to disclose those facts to the client as soon as possible, and to advise the client to consider whether they affect the decision. The same section requires best efforts to obtain a written acknowledgement back from the client.

A material fact is defined in section 1(1) of that regulation as "a fact that would affect a reasonable person's decision to acquire or dispose of the interest". Whether a particular death clears that bar is a judgement, and it is not the same judgement for a quiet death in old age as for a violent crime that made the news.

Running the other way is confidentiality. Section 12 of the Code of Ethics, Ontario Regulation 365/22, says that except as otherwise authorized or required by law, a registrant shall not disclose a client's confidential information to a third party without the client's written consent. A listing agent who was told something in confidence, and whose seller carries no legal obligation to pass it on, is in a genuinely awkward position. That is often why the answer sounds careful.

Can you ask for a written statement about the property?

Yes, and it is worth asking.

Some Ontario sellers fill out a written statement about the property for buyers, usually the Seller Property Information Statement. Doing so is voluntary. Section 22.3 of Regulation 567/05 says that where the seller's agent knows one has been completed, the agent shall disclose that it exists to every buyer who expresses an interest in the property, and make it available to a buyer as soon as possible after a request.

So ask whether one exists, and if it does, ask for it.

What makes it worth having is what the Court of Appeal said about it in that same 2011 decision: "Although the completion of an SPIS is not mandatory, once a seller decides to fill one out, he or she must do so honestly and accurately and the purchaser is entitled to rely on the representations contained in the SPIS."

Saying nothing and saying something false are treated very differently in Ontario. That is the practical heart of this whole question.

What should you do before you sign an offer?

Ask in writing, and ask before the offer goes in rather than after.

1. Put the question to the listing brokerage in writing, through your own agent, and keep the reply. An email is enough.
2. Ask something specific. "Has anyone died in this property?" can be answered. "Is there anything I should know?" cannot.
3. If the answer matters to you, speak to your real estate lawyer before you sign. A warranty written into the agreement is worth more than an assurance given in a conversation.
4. Do your own looking. Neighbours, a news search on the address, and the history of the building are all open to you and cost nothing.

Section 5 of the Code of Ethics requires a registrant to make best efforts to ensure that any representations are accurate and are not misleading, and not to engage in or be a party to misrepresentation. That duty has something to bite on only once a question has been asked.

What if you are told no and find out later?

Take the paperwork to a real estate lawyer.

A written answer that turns out to be false is a different thing in law from a seller who was simply never asked, and what can be done about it depends on what was said, who said it and what it was worth. That is a claim rather than a complaint, and it belongs with a lawyer. Conduct by a registered agent is a separate track and is dealt with by the regulator rather than by the courts.

If what worries you is physical rather than psychological, a former grow operation for example, the analysis is different and usually stronger, because in that case the building itself has been altered. We have written that one up separately in our guide to disclosing a former grow operation in Ontario.

If you are looking at older homes and want the questions worth asking before an offer goes in, start here.