Here’s a question that comes up from time to time when working with buyer’s, often enough to make mention of it here. The standard Residential Purchase Contract does not contain a clause which gives the Buyer a right of access to the property until the Seller’s lawyer tells the Seller the keys are releasable, and only at the agreed upon time. A walk through by the buyer and their Associate prior to possession is a privilege, not a right. Any access to the property prior to that point is 100 per- cent at the discretion of the Seller.
“Buyer’s lawyers who set an expectation with their clients that they have a right to a walk through because of “common practice” are misleading their clients”. (Calgary Real Estate Board – March 9th, 2007) While a walkthrough may once have been common practice, it is certainly not an entitlement. An exception is when it is inserted as a term in section 7.6 of the Standard Real Estate Purchase Contract at the time of negotiations, and agreed to in writing by all the parties to the transaction.
Don’t be surprised if the seller is not agreeable to the purchaser endeavouring to reopen negotiations, and refuses your eleventh hour request as it usually comes at the worst possible time, when their home is in disarray and they are scrambling to meet their move-out deadlines.
Walkthrough or not, there is an obligation for both parties to close. There are no implied provisions, other than what is already provided for in the Purchase Agreement under the Terms. The buyer’s lawyer has no legal authority to hold-back funds based on the findings of walk-through. If the buyer refuses to advance the funds based on walk-through inspection, then the buyer will be in breach of the Purchase Agreement and they could be held to task by the seller, especially if the seller is already “hell-bent” on giving them the gears.
Fortunately sellers are obligated to disclose any new or existing material defects prior to closing, and most would not want the threat of civil litigation hanging over them after closing.
That being said, if the buyer still wishes to wishes a walkthrough prior to possession it should be brought up during negotiations so that it can be written into the Purchase Agreement as a condition. Seller’s may not agree to this since it could open the door to a buyer refusing to close at the eleventh hour for no legitimate reason and chances are, they have already entered into a new purchase agreement for their own purchase.
If you are considering a purchase or sale of real estate in Calgary, please call.