The Well That Failed After Closing
A rural property near Truro is listed with a drilled well, a septic system installed in 2009, and a detached workshop built in 2017 without a permit. The listing says "well and septic in good working order." Buyers Marcus and Elena include a condition in their agreement of purchase and sale: satisfactory water quality and quantity testing, to be completed within ten days. On day eight the test shows coliform bacteria present and a flow rate of two gallons per minute. The sellers agree to shock-chlorinate the well and provide a new test, which comes back clear on bacteria but shows the same flow rate. The buyers' agent, Tessa, tells them the flow rate is "fine for a couple" and the condition deadline passes without written waiver or extension. Closing occurs. In February the well runs dry during a cold snap, and the buyers learn the workshop was built over the septic tile bed.
1. Did the buyers validly waive their condition, and what is the effect of the deadline passing without written notice?
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On these facts the condition was not validly waived. A condition precedent in a Nova Scotia agreement of purchase and sale must be satisfied or waived in writing by the stated deadline, or the agreement becomes voidable at the option of the party for whose benefit it was inserted. Oral reassurance from the agent does not satisfy the condition.
The buyers' agent had no authority to waive a contractual condition on the buyers' behalf unless they gave her express written authority to do so. Tessa's comment that the flow rate was "fine for a couple" is advice, not a waiver, and it was poor advice given a two-gallon-per-minute result. The buyers needed either a written waiver signed by them or a written extension of the condition date.
Because the deadline passed with no written waiver or extension, the agreement was at risk of becoming voidable. If the parties proceeded to closing anyway, a court would likely treat the conduct - including the sellers' remediation and the buyers' attendance at closing - as an implied waiver or as affirmation of the contract. That does not give the buyers a remedy against the sellers for the low flow rate; it means they accepted the property subject to it.
Tessa's exposure is separate: she gave an opinion on a technical matter outside her expertise and failed to document the condition. The buyers may have a claim against the brokerage, and the file should be reviewed by the managing broker.
2. What claims might the buyers pursue regarding the workshop over the septic bed and the low-yield well, and how does the "good working order" representation affect them?
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The workshop issue is the stronger claim. Building a structure over a septic tile bed can interfere with the system's function and may breach setbacks or approval requirements. The buyers should first obtain the septic approval and any municipal records for the property. If the sellers built the workshop, knew it covered the tile bed, and did not disclose it, the buyers may have a claim for negligent or fraudulent misrepresentation, or for latent defect where the sellers' conduct amounted to concealment. The sellers' duty is to disclose latent defects they know of that make the property dangerous or unfit for its intended use; an undisclosed encroachment on a septic system may qualify.
The well claim is weaker. The buyers had actual test results showing two gallons per minute before closing. A defect that is patent or actually known to the buyer is not something the seller must disclose, and a buyer who proceeds with knowledge generally cannot later complain. The phrase "good working order" is a representation about the system operating, not a guarantee of yield, and the buyers knew the yield figure.
The buyers should also pursue the agent and brokerage. Tessa minimized a known adverse test result and let the condition lapse, which may be negligence. The buyers should gather the test reports, the listing, the agreement, and the municipal file, then get legal advice on limitation periods, which in Nova Scotia are short for property claims.