I found this article very informative and thought it was worth passing along.
Disclose problems you know about when selling your home
Buyer beware, or Caveat Emptor, is a phrase used to describe the outcome when you buy something
and later find a problem with it. In plain English it means tough luck - you’re buying the thing ‘as is’ with
all the defects in it.
In some cases involving the purchase of a house, it’s not as easy as that for a seller to get off the hook. If
you know there’s something seriously wrong with your house, something that might not be found in a
home inspection and you don’t disclose it, you can be successfully sued later.
In October, 2011, Jason Pedlar and Mary Kalbfleisch agreed to buy a 35-year-old home in Caledon from
Daniel McDevitt and Elizabeth Jakobczak. The couple had a home inspection done before they put in an
offer, and the inspection found no sign of plumbing drainage problems.
The deal closed in mid-December. Two months later on Feb. 20, Pedlar found sewage backing up into
the basement bathtub and sink. Roto Rooter cleared the drain, but could not get past a certain point in
the pipe. A TV scope showed water pooling inside the pipe. A quote of $6,000 plus HST was given to
repair the problem.
Pedlar contacted his insurance company and the work took longer to do and cost more because the
basement had 36 inches of concrete. The buyers had to move out while the repairs were being done
because of the dust and noise from the jack hammering.
Ms. Kalbfleisch was also pregnant. The insurance company paid for them to stay in a hotel while the
repairs were completed.
Pedlar contacted the Region of Peel and learned they had been out to the property twice in 2010 to
inspect and clean out blockage from the same sewage line. The Region sent a letter to McDevitt after
the second visit in July, 2010 suggesting other repairs be done.
Pedlar and Kalbfleisch sued for $14,945, which were the additional costs not covered by their insurance
to repair the problem. They asked for $5,000 more in aggravated damages, because they had to move
out and have their baby while outside the home.
McDevitt admitted in court that he had a problem with the basement bathroom but that after the
Region came out and cleared the blocked area, they told him that if he had no further problems for six
months, he would be good to go.
McDevitt also said in court that the basement bathroom every day and did not have any problems from
July 2010, until the sale in 2011. He stated in court that he did not mention this to the buyers because
he felt that this was no longer a problem.
In a decision released this month, Judge John Rose of the Barrie Small Claims Court used the law of
hidden defects to reach his decision. He said that if the seller knows about a defect that has caused any
loss of use or enjoyment of a meaningful part of the premises, then it must be disclosed to the buyer.
The Region inspectors testified that they discussed the potential sewer pipe problem with McDevitt.
This together along with the letter convinced the Judge that McDevitt knew about a structural problem
with the pipe which should have been disclosed.
He awarded the buyers $10,500 for the repairs to the pipes but nothing for aggravated damages as the
sellers did not do this with any ill motive and there was no evidence of mental distress.
The buyers were fortunate to have uncovered the evidence from the Region of Peel to support their
position. Without it, it would have been difficult to prove that the sellers knew anything about this.
Here are lessons:
Buyers might consider a separate test for the drainage system as part of any home inspection
with older homes, even if this costs an extra $200 to $300.·
Sellers should disclose any structural problems to avoid getting sued later.
62 Hillmount Ave. Toronto, Ontario,M6B 1X4
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