Area of Law: Real Estate Law
Answer Number: 401
New home considerationsRegion: Ontario Answer Number: 401
Buying a new home or a resale home
There are a number of differences between buying a new home and buying a resale home. A new home is one that has just been built. You might buy a new home from a contractor who has already built the home, or you might hire a contractor to build it for you. A previously-owned home, often called a resale home, has already been lived in. There are advantages and disadvantages to both.
When buying a new home:
- it may have the most current materials and features, and the purchaser may be able to choose certain features such as flooring, cabinets and electrical fixtures;
- the purchaser may have to pay extra for certain features, such as a fireplace, or trees;
- certain taxes may be added to the cost of the home, such as the GST, or HST in Ontario; and
- a warranty may be provided by the builder of the home, and New Home Warranties are provided by provincial governments.
When buying a resale home:
- purchasers can see what they are buying;
- landscaping is usually done and other extras such as a pool or a finished basement may already exist;
- buyers do not have to pay the GST/HST unless the house has been renovated substantially, and then the taxes are applied as if it were a new home; and
- renovations may need to be done, as well as major repairs such as replacing the roof or windows.
New home Purchase Agreements
Another difference when purchasing a new home is that the offer to purchase is considerably longer and more complicated than a resale Agreement of Purchase and Sale. In addition, the text is often written in very small print and there is not much space to make changes. For this reason, it is important to take the offer to a lawyer before signing it. Your lawyer will explain the agreement to you to ensure that it is acceptable. With your lawyer’s advice and assistance, you may also be able to delete or change terms that are heavily weighted in favour of the builder.
If you are unable to consult a lawyer before signing the offer, you may choose to insert a written clause into the contract stating that your acceptance is conditional on your lawyer reviewing the agreement and finding it satisfactory. Some builders will not accept agreements with substantial changes to the standard clauses. In these circumstances, it is important to assess the reputation of the builder and how past purchasers have been dealt with.
Delays and extensions to the closing date
When buying a new home which is being built for you, you should be prepared for possible delays and complications. Although many new homes are completed and ready to move into by the scheduled closing date, it is not unusual for the closing date to be delayed or extended. This can happen as a result of strikes, shortages of labour or materials, or simply the builder’s inability to meet the original delivery date.
New home buyers generally have less certainty about closing dates and move in dates. To provide a set of rules for both buyers and builders, the Ontario Home Warranties Plan has established a Delayed Closing Warranty. According to the rules, a delay does not automatically void or cancel an agreement between a buyer and a builder. If the closing date in your agreement is delayed beyond 120 days, buyers have a 10-day window to cancel the entire contract. If the buyer chooses not to cancel the contract, the closing date can be extended again for another 120 days. By law, a builder is permitted two extensions of 120 days each, without having to pay delayed closing compensation, provided that the homeowner was given proper written notice. After the 240 days have elapsed, the builder must set a Delayed Closing Date and the homeowner is entitled to delayed closing compensation up to a limit of $7,500 plus GST/HST, based on the number of days of delay and any provable expenses for moving and storage. If the home is not completed by 365 days after the allowable extensions, the homeowner has a 30-day period in which to cancel the agreement.
The Warranties Plan also sets rules requiring the ‘notice of delay’ to be delivered by builders to buyers.
Deposit protection and warranties
All newly constructed homes and condominiums in Ontario must be enrolled in the Ontario New Home Warranties Plan, which is administered by Tarion. Purchasers usually have to pay the enrolment fee, which ranges from about $400 to $1700, depending on the purchase price of the property. In addition to setting certain guidelines for how the builder must deal with purchasers, the most important part of the program is the insurance plan. This protects purchasers from having to live in an unfinished or defective home if the builder is unable or unwilling to complete the work that needs to be done, and from losing their deposits, up-to an amount of $40,000 if the builder goes bankrupt.
If a builder fails to honour its warranty for service and repair, the cost or repairs may be covered by the Warranties Plan. If there are certain problems with the home, the buyer is able to make a claim for compensation against the Plan, rather than having to sue the builder.
The warranty covers new homes for seven years. During the first year, the builder is generally responsible for repairing defects in material or quality of work. During the second year of a new home’s possession, homeowner’s may notify Tarion of any outstanding warranty items covered by the two-year warranty or the major structural defect warranty. During years three through seven, homeowners may make a claim regarding any major structural defect directly to Tarion. Claims may be made at any time during a home’s third year of possession, but no later than the end of the seventh year of possession.
If for any reason the builder is unable or unwilling to return to make the necessary repairs, the Warranties Plan will pay for someone else to handle the repairs. Buyers of new homes should be aware that the Warranties Plan does not cover every kind of defect in a new home.
Buyers should also be advised of a number of additional costs involved in new home purchases. In addition to the enrolment fee in the Warranties Plan, HST is payable on new homes. In many cases, this is already included in the purchase price. Since this is a very significant expense, the Agreement of Purchase and Sale should clearly state if the HST was already included in the purchase price, and how any rebates are to be handled. Other extra charges can include lot levies, sewer impost charges, hydro meter installation, curb charges, gas hook-up charges, water hook-up charges, tree charges, and super mailbox charges. If you are buying a new home, you should be sure that you know what is actually included and what additional costs you will be responsible for on closing.
For more information on buying a new home, refer to Canada Mortgage and Housing Corporation. For more information on what the New Home Warranties Plan covers, or to make a delayed closing compensation claim, visit Tarion.
If you are buying a home and want to know how much of a mortgage you qualify for, use the Scotiabank mortgage calculator .
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