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While the responsibility of homeowners might be somewhat murky when it comes to new property construction, those intent on building their own homes should consider taking steps to protect themselves in case disputes arise, says Toronto area real estate litigation lawyer Raong Phalavong.
In a recent case, a city inspector ordered a Newfoundland couple to stop construction on their new home in Conception Bay South, N.L. a month after it began, after it was found that the right side of their house was nine centimetres over the margins.
The couple, it was reported, plan to file a civil suit against the surveyor they hired to draft the lot plan and against the municipality for not letting them know about the problem earlier. Read National Post story
Phalavong, a lawyer with Cambridge LLP, says she has come across disputes like this in the past, but they were resolved because variances were given by the city.
“Other times, disputes like this do not arise until many years after the fact in which case title insurance companies are usually involved to rectify the situation,” she adds.
In terms of who is responsible when this type of situation happens, Phalavong says it would depend on the facts of the case.
“In this case, it looks like some permit with a variance was already issued and then a further notation was marked on the permit. It is not clear if any express or explicit condition was attached to that notation and it seems the homeowners are arguing that there were none. There may be many people at fault from the general contractor to the city or to the homeowner,” she says.
“Typically the city has many stages of inspections, one of which is the footing/foundation stage; one would have assumed that any permit that has been noted up and that which was not complied with would have flagged by the city at that point; the builder or general contractor may also be liable to some extent for not applying for a further variance and/or confirming what the city’s notation on the permit meant,” she adds.
When it comes to making sure a new home is in line with the regulations required, Phalavong says the responsibility of the city and planners is usually transparent, as it is most likely encapsulated in their bylaws and enforcement procedures/policies, and/or in their overall values, mission and statements.
The responsibilities of homeowners, on the other hand, are somewhat tricky, she explains.
“Homeowners are usually lay people who put their trust in building experts to do their job and in the city to ensure the builders are doing their job. When it becomes a finger-pointing game between the city, the builders and the homeowners no one wants to be held liable. I am a big believer in researching and being in a position to protect oneself because you cannot trust anyone else to do it,” she says.
Phalavong recommends that homeowners who are intent on building their own homes: