A ruling handed down on December 18, 2025, by the Superior Court confirmed that, during negotiations, a seller may propose a clause allowing them to refuse the pre-purchase inspector chosen by the buyer, provided that this clause is duly included in a counter-proposal. The Court points out that this practice falls within the scope of contractual freedom and that such a clause is not unlawful in itself.
However, the Court specifies that any clause allowing the seller to refuse the pre-purchase inspector chosen by the buyer must stipulate that the inspection period shall begin to run again following such a refusal. Without this clarification, the clause could place the buyer in a precarious position and contravene the duty of good faith.
Following this ruling, the OACIQ wishes to reiterate several key principles to govern the use of such a clause in the professional practices of real estate brokers.
Firstly, the real estate broker representing the seller's interests must fully exercise their duty to advise. A clause allowing the seller to refuse the building inspector may present risks for the client, and the broker must make the client aware of the following aspects:
- Refusal of potential buyers
- Decrease in the pool of buyers
- Extended transaction timelines
- Difficulties in applying the clause in regions where there are few inspectors
When dealing with a buyer who is not represented by a real estate broker, the seller's broker must also objectively inform the buyer of his or her right to refuse such a clause or to request additional time to conduct an inspection if he or she decides to accept it.
As for the broker representing the buyer's interests, he must advise his client:
- On his right to refuse a counter-proposal containing such a clause
- Or on the need to set out additional timelines and clear terms when drafting the clause, in order to preserve his right to inspection, should he choose to accept this condition.
The OACIQ reiterates the importance for all real estate brokers to avoid any appearance of conflict of interest when recommending or refusing building inspectors, and to properly document their files with regard to the advice provided.
