“You’ll have to do the Seller’s Declaration”.
They may not be the seven words most likely to strike fear into the heart of a client, but they do make certain sellers as jumpy as (to borrow a phrase from Tennessee Williams) a cat on a hot tin roof.
Maybe it’s that word “declaration”. It sounds so very legal and official. If clients are jittery, it’s usually due to a misunderstanding of what this document is, and isn’t. Although since last July it has become a mandatory form to be filled out with every brokerage contract, the seller’s declaration is just a questionnaire with its Sunday clothes on.
The DV is quite a long form and for that reason alone can seem daunting. Despite the legal-sounding language, it’s important to understand that it’s not a legal warranty. Indeed, the OACIQ (the professional body overseeing real estate practice in Quebec) is clear that even when a home is being sold without legal warranty, the DV must be filled out to the best of the owner’s ability.
“To the best of their ability” is the key phrase here. No one expects the average homeowner to be a plumber, roofer, electrician and building inspector all rolled into one. The amount of knowledge you have about a property also depends on how long you have owned it. The DV should be seen as an opportunity to share what you do know, whether positive: we changed all the windows in 2007, or negative: we had carpenter ants in 1999. Even negatives don’t have to stay negative. If an exterminator was called for those ants and you haven’t seen hide nor hair of them since, that should be part of the declaration too!
The legal minds who drafted the document have actually left a lot of room for uncertainty. Most of the questions begin, “to your knowledge…” which means that, even if you answer “no” to a question about, say, water infiltration, you’re not warranting that there has never been water, you’re simply stating that you’ve never seen or heard about any. Other questions allow you to answer “don’t know” or “not applicable”.
Even before the DV became mandatory last year, I always strongly recommended to my clients that they fill it out. For one thing, it’s a written reminder for me when I’m showing the property to potential buyers. You may know these facts and figures off the top of your head, but I’d be foolish to rely on my memory to keep track of everyone’s furnaces and hot water tanks!
Having access to a DV allows buyers to enter into a transaction better informed. As for sellers, far from exposing them to legal action, it actually protects them. The example I always give is, if I have declared that my roof is 19 years old, a potential buyer has no grounds to come back after inspection and ask for a price reduction because the roof is old. Re-negotiating price following an inspection is very common here in Quebec, but this practice which can be so painful for sellers, can be severely curtailed by providing a thorough seller’s declaration.