Coombe v. Wolfenden, 2022 BCPC 218

Citation: Coombe v. Wolfenden 2022 BCPC 218 Date: 20221014 File No: 18649 Registry: Hazelton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: PAMELA COOMBE CLAIMANT AND: HILDA WOLFENDEN DEFENDANT AND: KELLY MATTSON THIRD PARTY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W.F.M. JACKSON Counsel for the Claimant: A. Lax Counsel for the Defendant: J.M. Duncan Counsel for the Third Party O. Hyatt Place of Hearing: Hazelton, B.C Date of Hearing: August 17, September 20-21, 2022 Date of Judgment: October 14, 2022

BACKGROUND [ 1 ] The defendant, Hilda Wolfenden, listed eight lots for sale in New Hazelton. Kelly Mattson was her realtor. The listing was subsequently changed to two separate parcels of three lots and five lots. There was a trailer on the three-lot parcel, [ 2 ] Pamela Coombe, the claimant, bought the smaller three-lot parcel in 2018, and an independent party purchased the larger parcel. [ 3 ] Ms. Coombe brought this action against Ms. Wolfenden claiming that the trailer she bought encroaches on the larger parcel. She also claims that fraudulent or negligent misrepresentations were made to her by Ms.

Wolfenden and her agent, Ms. Mattson, about the encroachment that caused the claimant to make the purchase. [ 4 ] Ms. Wolfenden pleads caveat emptor and that she made no misrepresentations. She has also made a claim-over against Ms. Mattson as her agent if Ms. Coombe’s claim is made out. [ 5 ] Ms. Mattson also pleads caveat emptor and that she made no misrepresentations to Ms. Coombe. Ms. Mattson further pleads that she did not act for the claimant and made it clear that Ms. Coombe should take independent steps to protect herself. EVIDENCE [ 6 ] Ms. Coombe testified that she viewed the property twice with Ms.

Mattson. She never met Ms. Wolfenden and had no direct dealings with her. Ms. Coombe stated that during the first viewing, Ms. Mattson told her that the edge of the deck was right on the property line and the steps encroached on the neighbouring lot. She was also told that the steps could be moved to the south side of the deck to avoid encroachment. [ 7 ] Ms. Coombe stated that Ms. Mattson said that she had walked the property and confirmed the property line. In her testimony, Ms. Mattson repeatedly denied saying that she confirmed the property line. Instead, Ms. Mattson testified that she told Ms.

Coombe that she could not rely on the measurement. [ 8 ] Ms. Coombe stated that after the first viewing she did not turn her mind to the encroachment again. [ 9 ] Ms. Coombe testified that she saw the Property Disclosure Statement (Exhibit 5 tab 15) before she signed the Contract Of Sale . Entry 1A of the Property Disclosure Statement states that the vendor is not “aware of any encroachments, unregistered easements or unregistered rights-of-way”. [ 10 ] Ms.

Coombe stated that shortly after the completion of the sale, the neighbour to the west, Calvin Hagen, told her “half of his driveway was on her property.” [ 11 ] Ms. Coombe testified that in October of 2020 she photographed the north end of the trailer. That photograph is Exhibit 1 tab 13. The photo shows a stake in the foreground marked 7/6. She does not know what the stake represents or upon whose property it sits. [ 12 ] Ms. Coombe produced a sketch of where the trailer is situate on lots 17 and 16. Lot 17 is one of the three purchased by Ms. Coombe and lot 16 was purchased by the independent party.

The sketch was prepared by HBH Land Surveying. It is not a formal survey. Small Claims Rules concerning expert evidence were not complied with by Ms. Coombe, and its admissibility was challenged. [ 13 ] Ms. Coombe produced an opinion by Bill Gorrell that the subject trailer could not be moved and hearsay estimates as to the cost of moving the trailer (Exhibit 1 tab 5). The admissibility of this opinion was also challenged. [ 14 ] Ms. Coombe also testified that, from her experience in looking for a home in New Hazelton in 2018, she believed that vacant lots were worth approximately $5,000 each. [ 15 ] Ms.

Mattson, in her testimony, stated that vacant lots in New Hazelton at that time were selling for between $3,000 and $5,000. [ 16 ] In cross-examination by counsel for Ms. Wolfenden, Ms. Coombe admitted that she did not look at any property stakes. She stated that she had a friend who had been an inspector do an inspection of the trailer for cash. She explained that she did not have it surveyed, as “I didn’t see a need as the encroachment had been explained.” She added that she was trying to keep the costs down. Ms. Coombe went on to explain that she had had it assessed, which she thought was enough.

She admitted that she now recognizes that the appraisal was to satisfy the lending Credit Union. Later, she explained that she declined title insurance because of the extra expense. [ 17 ] Ms. Coombe admitted that she did not see the boldface notice on page three of the Contract Of Sale that stated: “The buyer is urged to carefully inspect the premises and, if desired, to have the premises inspected by a licensed inspection service of the buyer’s choice.” [ 18 ] In cross-examination by counsel for Ms. Mattson, Ms. Coombe agreed that she had read the Know Your Options As A Real Estate Consumer form (Exhibit 2).

She understood there was some risk in not having her own realtor. When pressed by opposing counsel, Ms. Coombe stated that Ms. Mattson could have told her not to trust her, as she was not her realtor. However, she said that she trusted Ms. Mattson. [ 19 ] Ms. Coombe also stated that she discussed the “subject to” clauses that she should put in her offer. Ms. Mattson told her the usual clauses were subject to financing, insurance, and inspections. It was confirmed by Ms. Mattson that she told her those were the usual clauses. Ms. Coombe told her to use those three clauses and then Ms.

Mattson wrote up the offer to purchase for the purchaser who then signed it and sent it back to Ms. Mattson to present to the vendor. [ 20 ] Ms. Wolfenden testified that the trailer had been placed where it now sits when she and her husband purchased it in 1969. They lived in the trailer until 1981 when they constructed a house to the east of the trailer on the same eight-lot parcel.

[ 21 ] Ms. Wolfenden testified that she had initially attempted to sell all eight lots together. Ms. Mattson was her realtor at that time. After a couple of months with no sale, she accepted Ms. Mattson’s advice that the lots should be sold as two parcels. [ 22 ] Ms. Wolfenden testified that, on Ms. Mattson’s advice, she had the trailer registered and an electrical certificate done in order to be able to sell the trailer. She stated that she did whatever Ms. Mattson advised. Ms. Wolfenden did not know anything about encroachments and thought the property lines were “OK” because Ms.

Mattson and her son had checked them by measuring the three-lot parcel. [ 23 ] Ms. Wolfenden agreed that she stated on the Property Disclosure Statement that she was not aware of any encroachments. She stated that she did not know there could be an encroachment. [ 24 ] In cross-examination by counsel for Ms. Coombe, Ms. Wolfenden stated that the itemized “minus” “Encroachment of mobile home property needs to be determined prior to listing” was not brought to her attention. That entry is on the Comparative Market Analysis prepared by Ms. Mattson (Exhibit 5 tab 4).

The highlighted notice that the mobile needed to be registered at the Motile Home Registry and a BC Electrical Permit number obtained were pointed out to her. [ 25 ] Ms. Wolfenden could not remember if either of her sons mentioned that the stairs off the deck were on the adjacent lot. She continued that she had never seen the Multiple Listing Notice prepared by Ms. Mattson. It states, “the deck might encroach on setbacks.” [ 26 ] Ms. Wolfenden testified that after listing the property she moved from New Hazelton. Therefore, she spoke very little with Ms. Mattson.

All subsequent documents and most communications where relayed in two stages to her through her daughter Carol and her son Art. [ 27 ] Carol Bissell testified that she is the daughter of Ms. Wolfenden. She corroborated that Ms. Mattson would send documents to her to review and then she would email to her brother Art who would deliver the documents to their mother for electronic signature. Ms. Bissell stated that she was not a client of Ms. Mattson. Ms. Bissell also testified that Ms. Mattson never asked Ms.

Bissell to discuss the topic of encroachments with her mother. [ 28 ] In cross-examination by counsel for the claimant, Ms. Bissell confirmed that the Multiple Listing Notice note that “the deck might encroach on the setback” was never brought to her attention. [ 29 ] Ms. Mattson testified that she was a licenced realtor from 2012 until 2018. [ 30 ] Ms. Mattson testified that it was common to have encroachments in New Hazelton. She added if there was a “red flag”, she would call the Town office to clarify.

When her search revealed that the trailer had neither been registered, nor possessed an electrical inspection number, she brought those to the attention of Ms. Wolfenden and had the problems corrected. [ 31 ] Ms. Mattson testified that, among many other problems, encroachments were common in New Hazelton. She continued that she did discuss that the deck was in the setback when the Property Disclosure Statement was signed. [ 32 ] Ms. Mattson stated that she did not see the peg marked 7/6 in Exhibit 1 tab 13 during her visits to the property. [ 33 ] Ms. Mattson testified she told Ms.

Coombe that she and Mark had measured the lot from the fence line. She added that she had also told Ms. Coombe that it was not accurate as it was measured from the treed fence line. She stated later in testimony that she was not sure that the fence line was on the legal boundary line because of the trees. She stated that the fence could be two or four feet in from the property line. [ 34 ] Ms. Mattson testified that she discussed an encroachment with Ms. Bissell and the vendor but they decided that it was not an issue because of the measurements the realtor had done. Ms.

Mattson continued that she did not know that the trailer encroached on the adjoining lot. She knew that “most buyers check property lines and obtain a certificate of location. She ended that statement by adding that they did not know where the property lines were so they decided it was not an issue. [ 35 ] Ms. Mattson explained that during the first viewing with Ms. Coombe that she explained that she did not know where the property lines were and added that if the potential buyer was concerned that she could get a survey. [ 36 ] Ms. Mattson testified that Ms. Coombe wanted Ms. Mattson to write the offer.

In response to that request, she asked if Charlie McCurry, another realtor, could do it. Ms. Coombe had told her that she had been earlier trying to contact Mr. McCurry. Ms. Mattson quoted Ms. Coombe as saying, “I trust you”. Ms. Mattson testified that at that point she said, “You cannot trust me, I act for the vendor.” She quoted Ms. Coombe as responding, “No, I want you to write the offer.” [ 37 ] Ms. Mattson testified that she told Ms. Coombe what the usual three subject to’s were. After Ms.

Coombe told her to use those clauses she wrote up the offer emailed it to the purchaser who signed and returned it. [ 38 ] In cross-examination by the claimant’s counsel, Ms. Mattson said in her experience in New Hazelton sellers never do surveys and maybe only 5 to 10 buyers have. She testified that she had done between 200 and 250 sales just when acting for both buyer and seller. [ 39 ] In cross-examination by Ms. Wolfenden’s counsel, Ms. Mattson stated that she had never seen another realtor walk the perimeter to check the boundary lines.

She stated that she did not remember if she went over the Contract Of Sale with the vendor. She said that, if she did, it would have been on the phone. Her discussions about the listing agreement were with Ms. Wolfenden and her daughter, Ms. Bissell, and Ms. Mattson went through “her normal spiel”. [ 40 ] In cross-examination, she agreed that when the Property Disclosure Statement was signed Ms. Wolfenden brought up the defective fireplace. Ms. Mattson said, at Ms. Wolfenden’s request, she inserted that warning into the disclosure document. Ms. Mattson

said that she did not bring up any other concerns as “it was Hilda’S PDS , not mine.” She agreed that she never suggested a certificate of location. [ 41 ] In cross-examination, Ms. Mattson stated that because there was a limited market for large parcels, she suggested splitting the lots into two parcels. She admitted that she did not discuss possible encroachments if the lots were split into two parcels. She admitted that she never explained to Ms. Coombe the difference between an inspection and a survey and that she never told Ms. Wolfenden that there might be an encroachment.

ANALYSIS [ 42 ] The onus is upon Ms. Coombe to prove her case on the balance of probabilities. [ 43 ] The onus is upon Ms. Wolfenden to prove her claim-over on the balance of probabilities. [ 44 ] The first question is whether there is an encroachment. From the surveyor’s sketch (Exhibit 1 tab 6) and the aerial overlay map (Exhibit 5 tab 23) I am satisfied that the trailer itself encroaches on the neighbouring lot 16. [ 45 ] Ms. Wolfenden made a representation in the Property Disclosure Statement that she was not ‘aware’ of any encroachments. I accept her evidence that she did not know of any encroachments.

Indeed, she did not understand what an encroachment was. [ 46 ] However, the Property Disclosure Statement states at the start of the form as follows. THE SELLER IS RESPONSIBLE for the accuracy of the answers on this property disclosure statement and where uncertain should reply ‘Do Not Know’. This property disclosure statement constitutes a representation under any Contract of Purchase and Sale, if so agreed in writing, by the seller and the buyer.” [ 47 ] The realtor, Ms. Mattson, knew that there was an encroachment. Her position is that the encroachment was only the steps off the deck.

However, she was concerned enough to measure the size of the three lot parcel from the west fence line. She told Ms. Coombe that the 99-foot eastward measurement ended at the start of the driveway on lot 16. The Comparative Market Analysis Ms. Mattson prepared noted as a minus that the “parking area will have to be established in front of the mobile” rather than use the driveway on lot 16. Exhibit 5 tab 23 shows a motor vehicle parked in front of the trailer on the driveway on lot 16. [ 48 ] Ms. Mattson also admitted that she knew that encroachments were common in New Hazelton. [ 49 ] Ms.

Mattson also reasonably would have to conclude that the property line was, at best, at the edge of the driveway on lot 16 from her measurement. She testified that she was not sure if where she started her measurement of 99 feet eastward from the west fence was the actual western property line. She stated that the actual property line could be two or four feet further west beyond the trees. To her knowledge, that would place the trailer another two to four feet further onto lot 16. [ 50 ] Ms. Mattson was Ms. Wolfenden’s agent and owed her a duty of care to bring the problem of an encroachment to her attention.

She was negligent to the point of being reckless in not doing so. Accordingly, that recklessness is attributed to Ms. Wolfenden in her representation on the Property Disclosure Statement under the doctrine of Agency. [ 51 ] In addition, Ms. Mattson’s actions undermined the warnings given to Ms. Coombe that she could not rely on her and needed independent assistance as stated in the Know Your Options document (Exhibit 2). That document states that realtors do not have a duty to give you all relevant information. [ 52 ] Ms. Mattson assisted Ms. Coombe in preparing the offer to purchase. Ms. Mattson knew that Ms.

Coombe trusted her. There is a conflict in the evidence of the two woman whether Ms. Mattson told her to have a survey done. The documents recommend that the buyer have an inspection done. The purchaser did have an unofficial inspection of the trailer done. Ms. Mattson admitted that she never explained to Ms. Coombe the difference between an inspection and a survey despite the obvious risk of an encroachment. [ 53 ] Ms. Mattson provided Ms. Coombe with the Unrepresented in a real estate transaction? Know the risks . form.

It states on page 2 “If you want to be an unrepresented party and use some of the limited services that a real estate professional already representing another party to the transaction can provide, the real estate professional must give you a clear understanding of their obligations to their client and the limitations to the help they can give you.” I find that this was not done. Ms. Mattson told her what the usual “subject to” clauses were.

One of these is to have an inspection but the difference between an inspection and a survey was not explained. [ 54 ] For fraudulent or negligent misrepresentation to void the doctrine of caveat emptor a number of factors must be present. [ 55 ] The first is that the defendant makes a representation of fact to the plaintiff. Here, Ms. Wolfenden made a representation that she was unaware of any encroachment.

That misrepresentation was made in the Property Disclosure Statement , and was then compounded through her agent’s verbal representations that she had measured the parcel and the property line was at the start of the driveway on lot 16. [ 56 ] The second factor is that the representation made is false. It is obvious that a portion of the trailer itself, and not just the deck or steps, encroach on lot 16. [ 57 ] Thirdly, the defendant is reckless as to whether the representation is false when it is made. Ms. Mattson was reckless to the existence of an encroachment and breached her duty to Ms.

Wolfenden in not clarifying the problem before completing the sale. This caused the defendant to be reckless in her representation about the encroachment. [ 58 ] The fourth factor is that the defendant intends for the plaintiff to act on the representation. Here the Property Disclosure Statement is by reference a central part of the contract.

[ 59 ] Fifth, the plaintiff is induced to enter into the contract in reliance upon the false representation and thereby suffers a detriment. That is obviously the case here. [ 60 ] I find that Ms. Coombe has made out her claim and that Ms. Wolfenden has made out her third party claim against Ms. Mattson. However, two issues remain. The first is whether Ms. Coombe was contributorily negligent in relying on the negligent misrepresentation. The second is what the damages, if any, are. [ 61 ] Should Ms. Coombe have been concerned despite the representations about encroachments? Ms.

Mattson told her that there was a small encroachment of the deck steps. Ms. Coombe was further told that the steps could simply be moved. Ms. Mattson told her the measurement for the parcel ended at the driveway running close to the trailer. These would have been red flags to a person experienced in real estate such as Ms. Mattson while in comparison, Ms. Coombe had only purchased two home in the past. However, I find that a reasonable person would have been sufficiently concerned to have a survey done by herself or demanded one from the vendor.

I find her to be 50% contributorily negligent. [ 62 ] At this time, Ms. Coombe has not had to move the trailer or replace it with a house. She had broached the subject of an easement with the owner of lot 16 but negotiations have stopped while the other party consults a lawyer. To calculate damages on the cost of obtaining an easement is simply speculative. [ 63 ] I do accept the evidence of Mr. Gorrell that the trailer cannot be moved in light of its age and poor condition. Ms. Coombe testified that she has already done some renovations. [ 64 ] I further accept the evidence of Ms. Coombe and Ms.

Mattson that three vacant lots at the time of this transaction were between three and five thousand dollars each. I find that the three lots, without the trailer, were worth $15,000. [ 65 ] I calculate the damages as follows. The purchase price of $57,000 less the $15,000 value of bare lots results in damages of $42,000 . [ 66 ] The defendant, Ms. Wolfenden is liable to Ms. Coombe for half because of the contributory negligence. That is in the amount of $21,000. [ 67 ] I find that the Third Party Ms. Matson is liable to hold Ms. Wolfenden harmless. Therefore, I give judgment to Ms. Coombe from Ms.

Mattson in the amount of $21,000 . ___________________________ W.F.M. Jackson, P.C.J. Provincial Court of British Columbia