Is the Hot Tub in good working order?

The following legal case was recently sent to us by Richard Cooper, Kitchener real estate lawyer:

A case has just come to my attention that I though would be of interest to you.

It involves a hot tub that was being sold along with the house. Although the agreement simply stated that the hot tub was to be in “good mechanical working order”, it did not specifically state that the purchasers could rely upon this warranty if a problem was discovered after closing.

As the purchasers’ luck would have it, right after closing, the purchasers attempted to “fire up” the hot tub, only to find that it did not work. Could be that the purchasers were looking forward to a relaxing moment in the hot tub after a difficult move. In any event, the buyers had to sue the seller in court.

After losing in Small Claims Court, the purchasers were able to get a higher court judge to agree that it was nearly impossible for the buyers to check out the hot tub before closing. Further, the judge believed the purchasers when the purchasers stated that at the time the agreement of purchase and sale was executed, the seller assured the buyers’ agent that the hot tub was in good working condition even though the seller admitted later that it had not been operated for a few years.

The purchaser was therefore awarded the sum of $4,500.00 plus legal costs. The interested point is that the judge made the seller and the real estate agent responsible to the purchaser on a 50/50 basis. The judge felt that the real estate agent had not drafted the agreement properly. I believe that since this “warranty” was important to the purchasers, it should have stated in the agreement that the warranty regarding the mechanical condition of the hot tub “survived closing” --- something to think about!

For further information conact Richard at 519-579-2250