Ten seconds is all it takes for someone to drown.The cruelly short time in which a tragedy can occur should serve as a warning to owners of homes with swimming pools, accord-ing to the Lifesaving Society.

“Someone might buy a house with a swimming pool but the pool wasn’t the main factor in their decision and they don’t understand the risks,” says Barbara Byers, public educa-tion director for the Lifesaving Society’s Ontario region. “Although a backyard pool can be a wonder-ful thing, home owners must understand the risks and take vari-ous steps to increase safety.”

Everyone has a role to play in water safety, she says, including home buyers, sellers and real estate professionals. “We should all strive to ensure that safety comes first,” she says. “REALTORS® who give information to the buyer about the risks as well as the benefits of a pool are providing a valuable service. Knowledge can prevent a tragedy, and I think most consumers would be grateful to anyone who helps inform them about safety.”

The Lifesaving Society has published Backyard Pool Safety Guidelines, which provides detailed information

for backyard pool owners about ways to minimize the risks of drowning and water-related injury. The

society has also produced a brochure and video, Within Arms’ Reach: Water Smart® Advice for

Parents. It includes comments from Canadian figure skater Barbara Underhill,

whose eight-month-old daughter Stephanie drowned in a backyard

pool. The society recommends that REALTORS® inform

buyers of homes with pools that the water safety bro-

chure and video are available to the public.

Children under the age of five are at highest risk of drowning, with double the number of fatalities over any other age group.

“Toddlers haven’t yet learned respect or fear

of water and usually don’t know how to swim,” says

Byers. “As well, the water has a magnetic attraction for them

and they want to go there.”

Most drowning is very fast and silent, she says. Almost 500 Canadians drown every

year on average. Although a backyard pool is a terrific oasis on a summer day, pool owners and visitors should take precautions to prevent a tragedy.

Safety is paramount for swimming pool owners

If you’re selling a home with a swimming pool, be sure your buyer is aware of the risks and responsibilities as well as the benefits. “A swimming pool can be a terrific place for entertaining and exercise, but safety should be foremost,” says Larry Cerqua, a Toronto broker with 33 years of experience in real estate. “If my clients buy a home with a pool and they haven’t owned a pool before, I like to make them aware of safety issues, local bylaws and codes for fences, locks and gates. People should enjoy their pool but it’s best for them to be aware of safety issues right from the start.”

Municipalities have different bylaws for swimming pools, says Cerqua, an instructor at the Ontario Real Estate Assoc-iation. “I always try to put a clause into the agreement of pur-chase and sale stating that the swimming pool is up to code.”

A pool can be a magnet for visitors on warm summer days, he adds. “You as the home owner are responsible for the

safety of your guests,” he says. “Even if you don’t have young children, you may have relatives, friends and neighbours with kids and you must still be careful.”

Pool maintenance takes time and can be costly, he adds. “Many people see a swimming pool as their cottage in the city, and it can be a great thing, but they should also know that that there’s a safety and maintenance side to it.”

Cerqua has seen situations where a pool leaked and a new liner had to be purchased, another potential expense for a buyer. “I’m a pool owner myself so I know that keeping it up can be expensive, especially if you have to hire a company to come in to remedy a problem.”

Home inspections don’t normally include pools, notes Patrick Rocca, a Toronto broker with 18 years of experience in real estate, who is also a pool owner. Buyers may need a separate inspection by a pool company, he says, which represents another cost.

InsideIllegible document leads to complaintpage 2

Merger of boardsannouncedpage 2

Disclosing proximity of sexual offender page 4

HotsheetHousing startsmoderate: CMHCMonthly housing starts in Canada totalled 182,754 units compared to 188,369 a month earlier, accord-ing to a news release from the Canada Mortgage and Housing Corporation. The trend is a six-month moving average of the monthly seasonally adjusted annual rates of housing starts, reported on May 8. “As expected, the trend in total housing starts continued to moderate in April, said Mathieu Laberge, CMHC’s deputy chief economist. “As a result, it drew closer to its historical average and is in line with estimates of household formation.” Visit www.cmhc.ca and click on Newsroom.

Market Watch Low interest, flattening pricesCanada’s housing market is being supported by an unprecedented combina-tion of low interest rates, flattening house prices and a strengthening economy, according to a recent sur-vey. The Royal LePage House Price Survey shows that the average price of a home in Canada grew between 1.2 and 2.4% in the first quarter of 2013. It noted that in some regions prices were flat or decreas-ing, and that factor along with inexpensive mortgages and the confidence of an improving economy has resulted in a “unique resi-dential real estate market.” For details, visit www.royallepage.ca and click on Media Room.

June 2013

EDGEREA

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In the swim: Pools and real estate

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Buyers should know about pool safety and maintenance...continued from page 1

Hot tubs are another source of concern, notes Rocca. He discusses safety issues related to hot tubs and pools with buyers so they understand that they must comply with municipal bylaws.

Rocca recently sold two homes with swimming pools, and in those instances the buyers stipulated in writing that they wanted the sellers to handle the procedures for opening the pool at the start of the summer and before the house sale closed.

Is a swimming pool an asset or a liability to a house on the market? That’s in the eye of the beholder, according to both REALTORS®.

“People either like the pool or they don’t, and I let buyers know that if they don’t want a pool, that doesn’t have to be a deal breaker,” says Rocca.“They can always fill it in, and many people choose to do so for different reasons.”

Swimming pools have pros and cons when you’re selling, he adds. “In my experience, a house with a pool tends to attract buyers whose childrenare a bit older, at least six or seven. It’s a tougher sell for families with infants or toddlers – they tend to be wary of pools for safety reasons.”

“The idea that a pool enhances the dollar value of your house can be a misconception,” says Cerqua. “The value of a pool is a very personal thing.”

RECO decision: Illegible document leads to complaint

Merger of two boards announced

The following decision from RECO Discipline and Appeals Hearings has been condensed and all names have been changed.

THE FACTSNancy was working as a broker at Peva Realty. In March 2007, she entered into an oral agreement with the complainant, Laura, a buyer. The agreement involved two condominium units that were being built. Nancy then wrote a partly illegible and unclear promissory note agreeing to pay a referral fee at the closing date, for each unit purchased by Laura. The illegible and misspelled note read as follows:

“I [Nancy] from [Peva Realty] agree to pay [illegible] commion as referal fee at closing date as accupancy. For [Builder A, The City A condo on A Street and B Street unit #1 and 2] which I pay her (Laura) [illegible] referral fee for each unit.” [sic]

At the same time, the builder agreed to sell Laura a penthouse property and another unit. The agreement of purchase and sale for both units included a completion date of July 2009. According to trade record sheets, Peva Brokerage received commission (including GST) of $8,956 on the first condo and $5,675 on the second condo. Nancy was to receive $8057 and $5,105 respectively in commission

on these properties, including GST. According to the November 2010 complaint to RECO, out of these commissions Nancy was to pay Laura approximately 0.5 per cent of the total purchase prices, totaling $2,394. In her complaint, Laura indicated that Nancy still owed her these monies.

THE FInDIngSThe RECO panel determined that Nancy acted unprofessionally by failing to treat the complainant fairly when she did not clearly document the agreement between herself and Laura. The panel also ruled that Nancy acted unprofessionally by not abiding by the terms of the agreement within a reasonable timeframe and to Laura’s satisfaction. It stated that Nancy breached the following sections of the REBBA 2002 Code of Ethics: (3) Fairness and honesty, etc.; (4) Best interests, and (39) Unprofessional conduct, etc.

PEnALTyNancy was fined $6,000 and ordered to complete the Real Estate Institute of Canada’s Ethics and Business Practice course. The full case is among those dated 2011/10/07 and can be viewed at www.reco.on.ca. Look under “Complaints and Enforcement” and scroll down to “Discipline and Appeals Hearings and Decisions.” Choose 2011 and search by date only.

Two Ontario real estate boards have announced their merger following membership votes on April 17.

The Georgian Triangle Association of REALTORS® and the Southern Georgian Bay Real Estate Association initiated the merger discussions with the help of the Ontario Real Estate Association’s Centre for Leadership Development.

The merger will help achieve the shared goals of the two associations by pooling resources, tools and expertise, says Andres Paara, president of the Georgian Triangle Association of REALTORS®.

“By combining our assets we will be able to provide more valuable services to our members, and most importantly, the communities that

our members serve – communities where we live and work that we want to see thrive,” says Paara.

“The merger is a perfect fit from a demographic and geographic perspective,” says Gray Watters, president of the Southern Georgian Bay Real Estate Association. “But more importantly, we have a shared ethos to support our neighbours and build our communities.”

A transition board made up of four representatives from each association has been set up. The new board is expected to hold its first meeting sometime in the coming weeks. The proposed name of the merged board is the Southern Georgian Bay

Association of REALTORS®, and it is expected to have more than 500 members.

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Don’t count on hearing a cry for help or a splash or wave, she says. Usually none of these sounds or reactions occurs. Often a child slips quietly under the surface and can’t be seen or heard from the house. Drowning victims rarely call out for help, wave or signal for help because they can’t keep their head or arms above water. Most young drowning victims are children or relatives of the backyard pool owner, and most gained access to the pool from the house. “Most often the story is that a child scampers out while the parents thought the door was locked or that the child was elsewhere in the house.”

Often the caregivers have turned away for a moment or are busy in an-other part of the house. They don’t feel the need to watch the children

every single moment, but toddlers and preschoolers are naturally curi-ous about water and ingenious at finding their way to it. “It’s not that people don’t care – it’s just that they aren’t aware of how fast tragedy can happen.”

“Drowning happens so quickly and silently that you must be on high alert to control or restrict access to a pool area,” she says. “You can’t rely on one single thing to ensure water safety, which is why we recommend several steps to create layers of protection.”

Multiple barriers to restrict access to the pool are recommended, she notes. “The goal is to reduce the risks,” she says. “Human error can occur if someone forgets to close or lock the gate to the pool. That’s why other layers of protection are needed.” (See tips below.)

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Drowning is usually fast and silent

Buyers should know about pool safety and maintenance

Tips for owners of backyard pools

Vigilance - Never leave a child alone near water, not even for a second. Don’t be distracted by a ringing phone, doorbell, task or another child. Many children who drown do so because caregivers lose sight of them for a short time. Be vigilant in supervising children near water. Keep them within arms’ reach in the pool and keep your eyes on the child.

Assessment - Evaluate the pool to determine whether access is limited and to ensure that safeguards are in place to keep young children from getting into the pool. Check municipal bylaws to ensure the pool complies. Don’t rely on a single measure to restrict access. Use multiple barriers and various strategies.

Fence - Most backyards with pools are fenced along the perimeter of the yard. Four-sided fencing is recommended but many existing pools have only three sides of fencing with the fourth side being the house. Ideally, another fence should separate the pool from the house.

gate - Ensure that the gate conforms to local bylaws. The latch should be located well above ground level and equipped with a two-phase opening mechanism that self-locks.

Lock - Install separate child-resistant locks well above a child’sreach. Use a combination lock rather than a key lock (and advise a neighbour of the combination in case of emergency.) Always keep the gate locked when no supervisor is present.

Barriers - At least two additional barriers should be set up (e.g., two fences or a fence plus an alarm system.) If an additional fence is not feasible, protect the pool area with an alarm. Many types of alarms are available, including beam alarms that encompass the pool as well as alarms triggered by

motion in the water. Audible alarms on all doors leading to the pool are an option.

Supervision - Designate a backyard pool lifeguard. An adult should supervise whenever children are using the pool. If you must leave for a moment, designate another adult to replace you as supervisor. If necessary, close the pool until someone can assume supervision duties.

Life jackets - Children who can’t swim should wear a life jacket or personal flotation device (PFD) if you are not with them in the water. Water wings are not recommended because they

don’t keep the head above water. Keep some floating rings and a reaching pole in or near the pool. Even if you don’t have kids, have some children’s life jackets on hand for friends and relatives who visit.

Draining - Empty unattended wading pools and buckets of water and turn them over. Children can drown in just inches of water from pools, wells, or even buckets.

Education - If you have a pool, cottage or property with access to water, you must be your family’s lifeguard. Make sure your kids learn to swim and have them complete their Bronze Medallion. Enrol them in

Lifesaving Society courses so that they can learn how to be Water Smart® before they get in too deep. Learn basic first aid and how to do CPR. Never swim alone and encourage others to swim with a buddy.

The Lifesaving Society is a national, charitable organization working to prevent drowning and water-related injury. Pool owners can purchase Water Smart® resources, including detailed information, brochures and a video. For more information, visit www.lifesavingsociety.com.

Question: What are the disclosure requirements for the presence, in the past, of a sex offender in the neighbourhood? Our clients’ next-door neighbour has a family member who was a sex offender. Two years ago the person was released into the neighbour’s custody. A few months after that, he was arrested and incarcerated for breach of probation. The neighbour says that he won't take the offender back, if and when the latter gets out of jail. What would our disclosure requirements be, given that it was in the past?

Response: Whether the sellers are liable for any such disclosure issues would depend on any representations that they made and the outcome of a case currently before the courts, all of which the sellers should discuss with their lawyer. As a listing registrant, you must disclose a material fact as discussed in section 21 of the REBBA Code of Ethics. The facts of when the offender moved to the neighbourhood and the knowledge of neighbours, the sellers and everyone concerned would be significant before any determinations of liability could be made. The code requires registrants to take reasonable steps to determine material facts that are known or ought to be known. The impact of the section is discussed in several OREA seminars including the RECO Real Estate Update. See the legal pamphlet titled Caveat REALTOR® – Disclosing Defects. It can be found under Legal Resource Materials in the Members section of the OREA website.

Reference to that disclosure could be noted in the non-public Remarks section of the listing data, and all other registrants and potential buyers should be informed of details prior to any showings. Have the seller consent and confirm in writing that this will be done. An acknowledgement could be included in any offer. For an even earlier discussion on disclosure, look at the September 1999 article in the REALTOR® EDGE newsletter titled “Things that go bump in the night.” It can be found under Legal Resource Materials in the section titled “Other Legal/Ethics Articles” in the Members section of the OREA website.

Whatever the courts might say about “stretching the boundaries of the latent defect principle” and about a seller’s obligation to disclose, REALTORS® are bound by a higher duty as set out in the code of ethics. This is just one more reason why a wise buyer should work with a REALTOR® rather than directly with a For Sale by Owner (FSBO) seller.

Questions sometimes arise in real estate about how to deal with the sale of a property in the neighbourhood of a convicted sex offender.

In one case heard by the courts in 2011, arguments were made about whether the sellers of a house had to disclose the presence across the street of an individual convicted of child pornography offenses. The judge in the case observed that “The question on this motion is whether

it is ‘plain and obvious’ that the seller of a house does not have to dis-close to a purchaser with young children the fact – which was common knowledge in the neighbourhood – that a person convicted under child pornography provisions of the criminal code lives across the street.” Alternatively stated, is this a plain and obvious “latent defect” by law, and is it of such a nature that it must be disclosed to buyers? The judge concluded that “It is not plain and obvious that, if the danger posed by the defect is considered sufficiently grave, a duty to disclose will not be imposed on the sellers.”

Dennis v Gray 2011 ONSC 1567

MERV’S COMMEnTS

Similar issues have arisen in the past. Here is a question posted to the Legal Forum section of the Ontario Real Estate Association website, along with my response.

Page 4

LEgALBEATDisclosing the presence of a sexual offender in neighbourhood

To: REALTORS®

From: Mervin Burgard, Q.C.Memo

Electronic real estate transactionsThe Ontario Real Estate Association (OREA) successfully advocated for a legislative amendment to the Electronic Commerce Act, 2000, that would facilitate faster, smoother real estate transactions. The amendment, introduced in May as part of Ontario’s budget, would delete the exemption of electronic agreements of purchase and sale from the act and grant them legal protection. Electronic agreements would reduce the time needed for real estate deals and REALTORS® and consumers would no longer need to fax, scan or email documents back and forth. For more details on this issue, keep watching the Government Relations section of www.oreablog.com.

Support the Motorcycle Ride for Charity Revving up their engines, REALTORS® from across the province will be part-icipating in this year’s Motorcycle Ride for Charity. This year’s ride takes place July 10 and 11. The ride starts at the Mississauga Real Estate Board and ends at the Sault Ste. Marie Real Estate Board. The riders will stop along the way at real estate board offices in Kitchener-Waterloo, Oakville-Milton and Grey-Bruce-Owen Sound, along with sites in Tobermory. All proceeds from the ride go to the REALTORS Care Foundation, which supports shelters and charities for the homeless in communities across the province. Last year the foundation gave out $568,000 in grants to 133 charities. Join in or support a rider with a pledge. Visit www.realtorscareontario.ca and click on the Ride page for more details.

OREA nEWS

Address inquiries or comments about REALTOR® EDGE newsletter to: Editor: Mary Ann Gratton • Writers: Joanne Milner, Mary Ann Gratton REALTOR® EDgE • Ontario Real Estate Association • 99 Duncan Mill Road, Don Mills, Ontario M3B 1Z2 1-800-265-6732 • Email: orea@orea.com

Website: www.orea.com • OREA Real Estate College • 1-866-411-6732

REALTOR® EDGE newsletter is published 11 times a year by the Ontario Real Estate Association. The newsletter aims to provide practical and useful news and information about the real estate industry to members of the association. The opinions expressed in the newsletter are not necessarily those of the publisher. Submissions from the real estate community are welcome, including letters to the editor, opinion pieces, events and news. The newsletter reserves the right to edit, based on space restrictions and/or suitability, and/or to refuse submitted material for inclusion in the newsletter without reason. All rights reserved. Reproduction in whole or in part without the express written permission of the publisher is prohibited. Contents are copyright of the Ontario Real Estate Association.

FPO

The code of ethics holds REALTORS® to a higher standard.