Updating the Seller's Declaration in Quebec When Something Changes Before Closing

The seller's declaration was signed when the house was listed, the promise to purchase has been accepted, and the notary appointment is a few weeks away. Then, after a heavy rain, a stain shows up on the basement ceiling. Or a letter arrives from the city. The declaration has not changed, but the house has. Our guide to the Quebec seller's declaration covers how to fill it in at the start. This article is about what happens later, when a new fact arises or comes to light between signing the declaration and signing the deed of sale.

A declaration made on one date, a sale that closes on another

The seller's declaration is a snapshot. It describes the property as the seller knows it on the day the form is completed. The sale only closes at the deed, sometimes months later, and in between the house goes on living: a roof can leak, a drain can back up, a neighbour can dispute a property line.

The buyer made an offer based on that snapshot. If it becomes inaccurate before closing and the seller knows, the gap between what is written and what is true is the seller's problem. Updating the declaration closes that gap while there is still time to deal with it.

Which new facts call for an update

The test is easy to state: a fact that makes an answer already given inaccurate or incomplete, or that would have belonged in the declaration had the seller known it at the time. Typical examples:

• a water infiltration, sewer backup or mould discovered after listing;
• a notice, infraction report or correction order received from the municipality;
• a formal demand from a neighbour about a fence, an encroachment or water runoff;
• a test result received after the fact, on water quality or a building material for instance;
• a problem already declared that gets clearly worse, such as a crack that widens.

On the other hand, a fact already declared and unchanged does not need repeating, and normal wear in an occupied home does not require a new declaration. When in doubt, put it in writing: disclosing something that turns out minor costs almost nothing, while withholding something that turns out serious can cost a great deal.

How the update is done: written, signed, delivered

The update is made in writing, like the original declaration. It identifies the answer concerned or the new fact, describes what the seller knows and since when, and notes what has been done about it, an inspection requested or a repair scheduled for example. The seller dates and signs it.

It is then delivered to the buyer through the brokers, and the buyer acknowledges receipt. Something said during a showing does not replace that document. If a dispute arises after the sale, the only question that will matter is what each side knew and when. A dated, received document answers it; a remembered conversation does not.

What the buyer can do with it, depending on timing

What an update changes depends on where the transaction stands when it arrives.

• Before conditions are lifted: if the inspection period is still running, the buyer can have the issue examined and factor it into exercising the condition, as the promise allows. Our article on the inspection clause in a Quebec purchase offer explains how that works.
• After conditions are lifted: the deal is firm, and the update usually opens a negotiation, over a repair before closing, a price adjustment or a holdback with the notary. What is possible depends on the terms of the promise and how serious the fact is.

Either way, buyers do better not to react alone. Their broker, their inspector and, for anything serious, their notary or a lawyer can help gauge what the update really changes. If the new fact is damage the property suffered before closing, who bears that risk is a separate question, covered in our article on property damaged before closing in Quebec.

The seller who stays quiet: what is at stake

The temptation is understandable. The offer is accepted, conditions are lifted, and a late disclosure could reopen negotiations. But a fact known before closing and not disclosed does not vanish at the signing. It tends to resurface afterwards, when the buyer moves in and finds it.

At that point the seller's written declaration, left as it was, works against them: it shows what they stated, and the buyer will set out to prove they knew otherwise. The update protects the seller as much as it informs the buyer, because it fixes in writing, on a date, when the information was passed on.

For buyers: ask the question before closing

Buyers do not have to wait for the seller to speak up. A few days before the deed, they can ask through their broker whether the seller's declaration is still accurate and whether anything new has come up since it was signed. A question put in writing calls for a written answer.

Whether the answer reports something new or confirms nothing has changed, keep it with the original declaration and the rest of the transaction file. It adds a second snapshot, taken just before closing, to the first one, and that second snapshot is the better description of the property the buyer actually receives.