Real estate agents need to take a hard look at their use of a document commonly used in property sales, says a Yukon Territorial Court judge.

Michael Cozens recently made a decision on a small claims case involving a property sold with a leaky roof.

The case was relatively straightforward, with Cozens deciding in favour of the buyers, Kerry Lyle and Glenda Bowers.

He found the sellers, Gary and Tracy Burdess, failed to tell Lyle and Bowers about water seeping through some light fixtures and walls in the spring.

The judge ordered them to pay damages of $10,818.15 to cover the cost of repairing the building's roof and areas damaged by the water.

But the case brought to light an issue which Cozens called "a legal minefield."

Included in the purchasing contract given to the buyers was a document called a Property Disclosure Statement (PDS), which asks sellers a series of questions about the state of their property. The document is not a required part of the sale, but real estate agents at RE/MAX use them as a matter of course.

"The form is not a mandatory document," RE/MAX owner Darryl Weigand said in an interview Tuesday. "Our policy is to explain that it is an inducement for sale."

The Burdess' agent, RE/MAX employee Dean Philpott, helped them fill out the form.

According to Tracy Burdess' testimony, Philpott never made it clear that it was not required, or legally binding.

"She did not feel she was well represented in that regard," Cozens found.

"Nobody tells you (that they don't have to be signed)," Gary Burdess said Tuesday. "Everybody assumes that you have to sign it, because that is how it's put to you."

When it came time to answer a series of questions about roof leakage and water damage on the PDS, the Burdesses paused.

There had been some water coming through the walls during the last thaw, the Burdesses told Philpott, but they believed the problem to be solved.

They ultimately answered "No" to the questions, and on Philpott's advice added the comment: "Owners have never lived in the house. It was a rental property."

Although Philpott was not a defendant in the case, Cozens saw fit to call attention to his actions.

"It would have been just as easy to suggest that the Defendants note that there had been a past water and/or moisture problem that was now fixed," he wrote.

But, he added, "It may well be that Mr. Philpott acted in the case in a manner consistent with how other real estate agents in the Yukon handle the PDS in residential real estate transactions.

"As such, it would be unfair for anyone to view my comments as putting his actions in a negative light."

He went on to recommended that real estate agencies and lawyers make "a comprehensive review...with respect the use of PDS in the Yukon."

He advised some "simple wording changes that make it clear that past and present problems be disclosed."

"Of course, we're going to take a look at it and determine that we are satisfied the document is doing its job," Weigand said of the recommendation.

But he stands by the disclosure document and said that in his experience, it is much more helpful than harmful.

"Within my office, we actually use the document as an inducement to keep people out of trouble," he said.

"Frankly, if somebody doesn't want to fill out a property disclosure document, it raises questions for me."

Gary Burdess said he doesn't mind having to pay the money. What concerns him is the lack of accountability for real estate agents.

"That needs to be looked into," he said. "You hire a real estate agent because you want someone on your side who knows what they are doing .... You expect them to help you out."

He said he feels his agent failed him by not telling him the property disclosure statement was not actually necessary for the sale.

Agents urge clients to fill out the statement because "they want to sell the house," Burdess said.

"Our goal is to sell our clients' houses," Weigand agreed.

That is what they are hired to do, he said. But he doesn't think his industry lacks accountability.

"(Real estate agents) are licensed through a significant licensing process," he said.

"We are regulated by the Yukon's Real Estate Act and internally we are constantly educating our agents and discussing these matters to make ourselves better."

The fact that RE/MAX agents in the territory are so rarely taken to court "is a testament to our company," he added.

That clean court record may be sullied, as the Burdesses are now seeking a legal opinion on how they should proceed. And Gary Burdess says he will never again sell a property without having an independent lawyer on hand.