Vendors and purchasers of rural property in the County of Haliburton should be careful when they deal with representations (warranties) in their agreements of purchase and sale about the working condition of septic systems, or they may end up in court. A common representation, inserted by the vendor, is the following: “The vendor warrants, to the best of his knowledge and belief, that the septic system is in good working order as of the date of closing.” A few weeks after the closing, the purchaser detects foul odours from the house drains and discovers that the septic system is now not in good working order.
The purchaser is faced with the weasel words “to the best of his knowledge and belief.” All the vendor has to do is prove that he had an honest and reasonably based belief in the truth of his representation. Here is his evidence: “The septic system has been working fine for the last 10 years that I have owned the property.” “I get the septic tank pumped out every two years. Here are the bills.” “I have never smelt a sewage odour or saw a sign of malfunctioning of the septic system.” Courts tend to accept such evidence, if uncontradicted, because the representation is starkly qualified by the weasel words. The purchaser’s case against the vendor will be dismissed.
But, if you are the purchaser, there is another way of phrasing the representation. Simply delete the weasel words. Then, the representation will be: “The vendor warrants that the septic system is in good working order as of the date of closing.” Two weeks after the closing, the septic system starts to back up into the toilet and bathtub on almost a daily basis. The purchaser calls a septic tank repairman who discovers that the solid content of the septic tank is quite heavy and causing a blockage on the inlet side of the tank. As well, the tank is running well above its normal level of 6 to 8 inches below the lid of the tank. What should the vendor have done? In this case, the court held that the vendor should at least have opened the tank lid and checked the level and content of the tank. A vendor who signs an unqualified representation without any verification testing prior to signing it, is reckless in his conduct and may be liable to the purchaser.