Date: 20170308
Docket: CI 14-01-87712
(Winnipeg Centre)
Indexed as: Brown et al. v. Lambrechts et al.
Cited as: 2017 MBQB 45
COURT OF QUEEN’S BENCH OF MANITOBA
B E T W E E N:
EVA BROWN AND ROBERT BROWN,
)
)
plaintiffs, )
)
- and )
)
CELESTE BASSON-LAMBRECHTS AND
)
HUGO LAMBRECHTS,
)
)
defendants. )
)
Counsel:
Eugene G. Zazelenchuk
for the plaintiffs
Richard M. Beamish
for the defendants
JUDGMENT DELIVERED:
March 8, 2017
McCAWLEY, J.
Introduction
[1]
The plaintiffs bring an action in damages against the defendants arising
from the purchase and sale of a house at 51 Billy Goat Bay, in Traverse Bay,
Manitoba (the “property”).
Among other things, the plaintiffs allege that the
defendants misrepresented to them that they had no knowledge of and were
unaware of any flooding, seepage or infiltration of water into the house; that
they were unaware of any unrepaired or incompletely repaired damage to the
house; that they were unaware of any rodent infestation in the house; and that
2
they were unaware of any problem or deficiency with respect to the septic
system, as alleged in the statement of claim.
[2]
It is further alleged that these misrepresentations were made to induce
the plaintiffs to enter into an agreement to purchase the property and that the
defendants covered, hid or concealed and failed to disclose any problems that
ultimately caused the plaintiffs loss and damage. The plaintiffs also maintain
that the house is uninhabitable, as a result of which they have had to carry the
cost of owning two homes for which they also make a claim.
The Evidence
[3]
The plaintiffs were living in Winnipeg in 2012 when they decided they
would like to move to the Grand Marais area for their retirement. After looking
at about 15 homes, including 51 Billy Goat Bay, in Traverse Bay, the plaintiffs
decided to put in an offer on the property.
[4]
Eva Brown testified that she saw the property three times.
The first
viewing was with her real estate agent where they spent between 30 to 45
minutes looking both inside and outside the house to see what condition it was
in. They had no concerns.
[5]
The second viewing took place about a week later when Mrs. Brown and a
friend, who had some experience in home renovations, spent about an hour
looking at the property. Again they had no concerns.
[6]
On the third viewing, Mrs. Brown, her husband (who has since passed
away), and their agent spent one and one-half to two hours looking at the
3
property. All were satisfied with what they saw. On June 20, 2013, the plaintiffs
made an offer to purchase. It was less than the listing price because, in their
view, the roof needed replacing. Their offer was met with a counteroffer from
the defendants and a signed disclosure form. Both documents were reviewed
with their agent. Reassured that there were no problems, Mrs. Brown testified
they signed the counteroffer and the deal was done.
[7]
Eva Brown’s stepdaughter, Elaine Kraeker, testified the first time she saw
the property was when she went to clean the house and help unpack. She said
the property smelled musty with mildew. She also testified she found rodent
fecal matter in the kitchen and, when it started to rain, water came pouring
down the wall by a corner beam where the bathroom and pantry met. She said
she was able to divert the water with tarps and staples, but that the carpet was
wet.
[8]
Numerous photographs of the house were filed as exhibits on behalf of
the plaintiffs in support of their claim that there was water leakage in the pantry,
living room/family room, by the door to the kitchen, on the subfloor where
carpet and underlay had been, as well as at various places on the walls. It was
alleged there was also water damage to the master bedroom floor and staining
on the bedroom windows. Mrs. Brown told the court there was “a lot of water in
the house.”
She was also concerned about mould so contacted Home Safe
Home Indoor Environmental Systems to get a mould reading and Labonte
Construction to re-roof the house and do other necessary repairs. She calculated
4
the total amount of money expended to be $62,421.22. This was in addition to
a second set of figures which was for wages although she was not sure to whom
they were paid.
[9]
Mrs. Brown also maintained that the septic field never worked and that
the cost of a new septic field would be “prohibitive” although no estimate was
provided. Mr. and Mrs. Brown never lived in the property.
[10] On cross-examination, Mrs. Brown acknowledged that she had inspected
the property on three occasions and had told her husband it was “doable.” She
also acknowledged that the purchase price was reduced to take into account reshingling the roof. Significantly, she confirmed that, although the offer included
a section which would allow a home inspection, this was waived by her because
the bank would be assessing the value of the property for the purposes of
obtaining a mortgage and she would be relying on the bank assessor to say if
there were any problems as well as her own inspections.
[11] She also acknowledged that, as far as she knew, no one had gone into
the crawl space under the house; that she was aware of the age of the house;
that after she took possession she never saw a mouse or squirrel in the house;
and that there were no issues that were apparent with respect to mould or
seepage when she purchased the property.
[12] Further, she agreed that her brother-in-law had considerable experience
in and was familiar with housing structures and, although she could have, she
5
did not ask him to view the property prior to purchasing it because she was
happy with her own inspections and that of the bank assessor.
[13] Somewhat significantly, she agreed that she had taken “lots of photos –
thousands” of the property but there were no photographs showing any water
pouring into the home. Furthermore, in a letter she wrote to her lawyer at the
time outlining her concerns, only one reference was made to rain coming into
the house and that was through a screen on the porch which had boards to
protect the porch against inclement weather but were not up at the time.
[14] Yves Labonte testified that he had known the plaintiffs for thirty years.
Although they did not socialize, his twin brother was married to Robert Brown’s
sister. It was Mr. Labonte’s evidence that he was paid a total of $46,246.20 for
work he did on the outside structure of the exterior wall of the property,
including an exterior beam which he replaced. He also replaced the roof. He
testified these were “big improvements” to the property and also confirmed that
the Browns themselves were not aware of any problem behind the walls until
they asked him to take a look.
Although he indicated he could see some
potential problems when he first looked at it, he acknowledged that this was
because it was within his line of work, implying it would not necessarily be seen
by the average person.
[15] Celeste Basson-Lambrechts testified that she and her husband, Hugo
Lambrechts had been married thirteen years. They had three children whom
they raised at the property at 51 Billy Goat Bay. Prior to their marriage, her
6
husband had rented the property and lived there. When questioned about the
allegations with respect to water seepage, she indicated she was aware that
there had been some water staining in one of the bedrooms and in the kitchen
between the kitchen and laundry several years earlier, but that Chieftain Roofing
& Building had done the necessary repairs and she was unaware of any other
problems after that.
[16] In 2003, Mrs. Basson-Lambrechts indicated the septic system had been
replaced.
They had had no problems with it while living there despite there
being a family of five who “put it to the test.” She acknowledged that it was a
condition of the purchase that they have the septic tank pumped out, but
testified they were unable to arrange for that to be done as soon as they wanted
because Lorne Anderson Septic Service could not get to it immediately.
However, it was done as soon as the service was available, a short time later.
[17] Mrs. Basson-Lambrechts confirmed that her husband was not particularly
handy and that if they needed any work done they relied on others. They never
took the walls apart, and never replaced any of the outside walls. There was
one place near the skirting where the boards touched the ground that they had
repaired.
[18] Mrs. Basson-Lambrechts also confirmed that she and her husband had a
different real estate agent who represented them throughout the purchase and
sale and that she and her husband had never met the plaintiffs prior to
possession. She recalled being asked by their agent to explain the maintenance
7
of the septic field system, which was noted in the offer to purchase, and they
replied they had the system pumped out once per year. They were willing to
meet with the purchasers to explain how it worked, but were never asked to do
so.
[19] It was Mrs. Basson-Lambrechts’ understanding that the plaintiffs wanted
to replace the roof and, as a consequence, the listing price of $195,000 was
reduced by approximately $25,000 so that the ultimate purchase price was
$178,000.
[20] A question arose with respect to question 17 on the Property Disclosure
Statement. Mrs. Basson-Lambrechts testified that the plaintiffs wanted an earlier
possession date so she drove to the hospital in Pine Falls, where her husband
was working, and met with him and the agent to facilitate this. Question 17
reads as follows:
17
Are you aware of any roof leakage that occurred while you owned
the property, or of any existing unrepaired or incompletely repaired
damage to the roof or shingles?
[21] Mrs. Basson-Lambrechts testified that, in hindsight, she realizes the
question should have been answered “yes and no” instead of just “no” because
they had had a leak at one time, but it had been fixed and there was nothing
since that had been repaired or left unrepaired. The form did not provide a yes
and no answer to what were in fact two questions.
8
[22] Mrs. Basson-Lambrechts also testified that she was unaware that there
was a part of the form where one could provide a more complete and accurate
explanation because the agent read the document to them and had them sign it.
[23] When asked about squirrels and rodents, Mrs. Basson-Lambrechts
indicated that while living in the house, on one occasion, they had a squirrel in
the roof and a neighbour closed the opening. On another occasion they noticed
dog food showing up in weird places and they set out a mouse trap and caught a
mouse.
Other than a second occasion when a mouse was sighted, she was
unaware of any problems with rodents.
[24] Mrs. Basson-Lambrechts also acknowledged on cross-examination that,
when the house was listed, the advertisement indicated the shingles were
approximately six years old. This admitted was not accurate and they were at
least eleven years old except for one area where they had been replaced more
recently. No further explanation was provided for this.
Analysis and Decision
[25] I have gone into some detail to review most of the evidence relative to
the matters at issue. As with cases of this nature, each case depends on its
particular set of facts.
Here, there was no argument with respect to the
applicable law. Counsel acknowledged that the doctrine of caveat emptor is alive
and well in Manitoba.
The plaintiffs have alleged fraud, saying that the
defendants misrepresented certain facts and covered up problems with respect
to water damage, leakage, and mould, an infestation of rodents, the state of the
9
roof and the state of the septic field system in order to induce the purchasers to
agree to buy the property.
[26] The doctrine of caveat emptor does not apply to deny a plaintiff’s recovery
where:
(a)
the vendor fraudulently misrepresents or conceals;
(b)
where the vendor knows of a latent defect rendering the house
unfit for human habitation;
(c)
where the vendor is reckless as to the truth or falsity of statements
relating to the fitness of the house where habitation; or
(d)
where the vendor has breached his duty to disclose a latent defect
which renders the premises dangerous.
[27] I reviewed the numerous cases provided by counsel which establish the
following principles:
(a)
a vendor is not obliged to disclose all known facts affecting the
value of land which might be material to the purchaser’s judgment.
The purchaser must form his or her own judgment (caveat
emptor);
(b)
mere silence without more on the part of the vendor with respect
to a defect subsequently discovered by the purchaser will not
normally found a cause of action against the vendor by the
10
purchaser for misrepresentation, or for fraud, unless the vendor is
found to have been deceitful; and
(c)
there can be no misrepresentation, or fraud, where the purchaser
knows, or ought reasonably to know, of the defect in question
because there is then no reliance. Reliance establishes the causal
connection between the defendant’s fraud and the resulting harm.
1)
The Infestation
[28] The evidence before the court was that one squirrel and two mice had
been seen in the house during the twelve years the plaintiffs resided there. The
plaintiff herself admitted that she had never seen a rodent while in the house
and yet it was alleged that the defendants were hiding an infestation. There is
no evidence to support this allegation.
2)
Mould
[29] The plaintiff was concerned about mould and had an inspection made
which resulted in a report that was not filed in evidence. However, Mrs. Brown
admitted that, as a result of the report, no remediation was required and any
mould was described as “ubiquitous.” There was no evidence to support the
claim of a problem with mould, or an existing danger from it.
3)
Septic System
[30] The defendants readily admitted that they were unable to have the septic
tank pumped out before possession and it did not happen, despite their
continuing efforts, until July 30, 2013.
The defendants’ failure to fulfil this
11
condition prior to possession is at best a technicality and was dealt with as soon
as possible.
I accept this explanation and the evidence of Mrs. Basson-
Lambrechts that the defendants had no problems with the septic system while
they were living at the property. The plaintiffs never resided at the property and
there was no evidence of their suffering any damages either before or after the
tank was pumped out.
4)
The Roof and Water Seepage
[31] The evidence with respect to the leaking roof was conflicting. The only
evidence of rain pouring down into the house came from Elaine Kraeker whereas
Mrs. Brown admitted that it was only a “misty rain.” It is also curious that of the
thousands of photographs were taken, none were taken of any water and no
mention was made of this problem in a letter the plaintiffs wrote to their counsel
at the time.
[32] Also significant is that the walls of the house were untreated cedar. It
would seem that no water staining was apparent because Mrs. Brown saw the
house three times and did not notice anything to be concerned about. Neither
did her husband, her friends or apparently the bank assessor.
[33] Furthermore, to the extent that any water staining existed (for example in
the pantry and on some window frames), there was no evidence before the court
that the defendants tried to hide or conceal it. Insofar as any staining under the
carpet or linoleum is concerned, the defendants say they were unaware of it
12
which is plausible.
As well, there is no evidence as to when it may have
occurred.
[34] As already noted, it was open to the plaintiffs to arrange for a home
inspection, but they opted not to do so.
[35] I am satisfied that, on the basis of the evidence before the court, the
plaintiffs have failed to prove on a balance of probabilities that the doctrine of
caveat emptor does not apply. I find that the defendants did not fail to disclose
anything of a material nature that was known to them at the time, nor did they
fraudulently misrepresent to the purchasers the condition of the house. To the
extent the advertisement for the property indicated the shingles were newer
than they were, there is no evidence of reliance by the plaintiffs who had the
purchase price reduced because they knew the roof needed replacing and were
planning on doing that anyway.
[36] Even if I had found liability on the part of the defendants, which I do not,
the plaintiffs have failed to prove any compensable damages. As the evidence
indicates, it was the plaintiffs’ intention to replace the roof and, as a result, the
purchase price of the property was reduced by approximately $25,000.
Mr. Labonte’s invoice showed that he billed $20,255 for the roof and
approximately $17,489 for the exterior walls and windows.
There was no
evidence that the exterior walls needed replacing and there was no claim made
in the statement of claim for replacement of the windows. The net result is that
13
the plaintiffs did not prove any damages which would be payable had liability
been found.
[37] The plaintiffs also claim the cost of obtaining an engineer’s report and a
report with respect to the mould. These costs might have been payable if the
plaintiffs successfully proved fraud, which they did not.
Conclusion
[38] The plaintiffs’ claim is dismissed.
[39] Costs may be spoken to if the parties are unable to agree.
McCawley, J.