Trained Eye

 
 
 

Leaking & Lawsuit

Question:

I hope you can perhaps help and offer your expert opinion with a very serious issue my husband and I are having in regards to the buyer of our house that we sold to her last September.

The prior year in August we took possession of a bungalow in East Fort Garry. This house was built in 1957 with two additions, a family room, bedroom, and a 4-season sunroom. As you can imagine by the age, the house needed upgrading from A to Z. My husband and I saw the potential and worked for months renovating and upgrading it to make it our home.

In April 2005, I found our dream riverfront house in Sanford. We put in an offer on the property, subject to selling our house in Winnipeg. In May 2005, while on vacation in England, our house was listed. The recent renovations included refinishing/repairing the existing hardwood floors, new PVC windows from Sears, new bathroom, new fridge, stove, washer, dryer and more, not to mention our labour. Imagine our happiness when our agent phoned us in England to announce that we had two offers. We accepted the higher offer from Ms. R.

Prior to making an offer, Ms. R. visited the house with a male friend or relative who inspected the house from top to bottom. In total, Ms. R. visited the house three or four times prior to making an offer. She also visited the house once more with her agent and her two older sons in mid-August prior to taking possession.

In January 2006, three months after possession, her agent contacted my agent by email to report that Ms R was experiencing issues with the house that she wished us to pay for. One of these was some water leaking into a kitchen cupboard. This water was coming from ice dams on the roof, which was seeping into this cupboard. Ms. R. now indicates, in writing, that she was "induced into buying the property". She basically accuses us of lying on the property condition report where we indicated that we had not experienced any water seepage into the house. She wants us to pay for removing the attic insulation and re-insulating the attic at a cost of $4,865.00. She also wants us to pay for repairing other items she claims are damaged. Please keep in mind that this house was built in 1957.

Ms R is claiming a total of $7,356.00 in damages in Small Claims Court. Our defense is that we did not experience any water in the house, but I know that we have to somehow prove this to the court. I read your article on March 26, 2006 and knew that with the information contained we would have "proof" that weather conditions can cause or exacerbate ice damming. Also the roof itself is extremely low-pitched and the shingles are in need of replacing.

One of the main points in our case is that we owned the house for only 14 months. The Condition Report that we signed was done so to the best of our knowledge after living in the house for just over one year.

Despite this, I am still worried. Is it not possible that the ice damming did not occur the prior year and therefore we had no water leakage in the house from this? I would appreciate your opinion and thank you, in advance, for replying

Answer:

The first thing for me to say is that I would be happy to give you my opinion, but I am not a legal expert and you should most certainly consult a lawyer on this matter. I often get casually approached with queries like this, but seldom has anyone sent in a detailed question like yours. I will offer you general advice and answer your question about the ice damming.

When someone purchases a home, it is their responsibility to do their due diligence about the condition of the property. This may include a Home Inspection or a Structural Inspection by a Professional Engineer, but too often it is a family member or friend with limited experience. Defects and possible concerns can be easily missed by the amateur, which may lead to surprises after possession. This appears to be the situation here.

Also, in recent years, the use of Property Disclosure documents have become quite common, which ask straightforward questions of the seller about known defects in the home. By filling out and signing this document, the homeowner is obligated to honestly tell the buyer about any of the issues that are addressed in the Statement. The sellers and their agents are also obligated to honestly represent the condition of the property when asked by the purchasers. You cannot be responsible for conditions or defects that you were not aware of, unless you were dishonest and purposely lied or withheld information from the buyer.

Contrary to your feeling that you have to prove your innocence, in relation to the leakage, this may not be the case. The purchasers will have to prove that you knew about the leakage and knowingly withheld this information and lied on the Property Disclosure Statement. It is completely reasonable to assume that excessive ice damming and leakage may not have occurred in previous winters with less fluctuation in temperatures and snowfall than last year. This is especially the case if the low slope roof was regularly cleared of snow. Also, the roof may have leaked due to the deteriorated condition that you have described. As long as you did not tell the buyers that the roof was in good condition or newly installed, you may be covered.

Too often, purchasers feel “buyer’s remorse” after possession and feel that they were pressured into buying the home. When this happens, they may tend to blame others and particularly the sellers, for any defects or issues that arise, despite their lack of proper scrutiny and inspection of the property prior to purchase. Contact a lawyer specializing in Real Estate law to represent you and the whole thing may be resolved quicker than you think.

 

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