Karr v. Bowes, 2022 NSSM 20

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Karr v. Bowes, 2022 NSSM 20 SCCH 508904 Between: Eric Karr Claimant — and — Maureen A. Bowes Defendant DECISION Adjudicator: Augustus M. Richardson, QC For the Claimant: Eric Karr and Brianna Cregan For the Defendant: Andre Gogan, A/C, for the defendant Heard: May 27, 2022 (by Zoom) Decision: June 9, 2022 [ 1 ] The claimant purchased a house from the defendant. He says that the defendant hid damage caused by rodents and other animals, and that she misrepresented the existence of such damage to him. He claims the cost of repairing that damage.

The Hearing [ 2 ] I was provided with an Exhibit Binder: Ex C1 by the claimants. The defendants provided a book of Disclosure Documents: Ex D2, as well as a brief and authorities. [ 3 ] At the hearing I heard the testimony of the claimant Mr. Karr, with a few interjections from his spouse (and c-owner of the property) Ms. Brianna Cregan. [ 4 ] On behalf of the defendant I heard the testimony of Ms. Bowes. The Facts [ 5 ] Ms. Bowes had a problem with a rodent infestation, which included over time rats and racoons. In 2010 or 2011 her husband was in

Bermuda and she was alone in the house. She saw a rat in the kitchen. Her son came, ripped up the kitchen floor and found a rat hole and stuffed it with insulation and foam. She had two dogs, and they would chase the rats or bark at night at the sound of them in the walls. She had pest control people come to the house, and they laid out rat poison behind the kitchen cabinets (so her dogs couldn’t find the poison). Entry holes were plugged. After that her dogs stopped barking so she knew the rats were gone. [ 6 ] She added that at some point she had a nest of baby racoons in the attic space.

Her soon removed them by cutting a hole in the ceiling and relocating them elsewhere. The mother came back a few days looking for them but then stopped. Her son repaired the hole in the ceiling. [ 7 ] She decided in the winter of 2020 to sell her house. Her husband had passed away some time before and the house was too big for her to manage on her own. She wanted to downsize. In the spring of that year she had a local handyman, or contractor, come in to tidy up the house for sale. She added that during the spring while this was happening the racoons came back.

She could see them outside, trying to find a way into the house through the roof. A neighbour came and blocked various possible entry points. [ 8 ] Ms. Bowes also testified that two of the four upstairs bedrooms had not been used for some years. She said some of the baseboards were beaten up and so had them replaced by the contractor she had hired that spring to spruce up the house. She moved out of the house in the summer to make it read for showing for sale.

She shuttled back and forth between the house and her cottage. [ 9 ] On May 8, 2020 (or possibly August 5, 2020) she filled out and signed a Property Disclosure Statement (“PDS”). Clause 11 of the PDS stated as follows: 11.1 Are you aware of any damage or hazards due to wind, fire, water/flooding, erosion, wood rot, pests, rodents or insects? [ 10 ] She answered ‘no.’ [ 11 ] The house was listed for sale. Mr. Karr and Ms. Cregan saw it. The house had curb appeal. It had a nice kitchen: Ex. C1, tab 2, figures 1. 2 and 3. They fell in love with the house. [ 12 ] On August 5, 2020 Mr. Karr and Ms.

Cregan made an offer to purchase the Property for $310,000.00. The offer was accepted: Ex. D2, tabs 1 and 2. Mr. Karr testified that in making the offer he relied in part on the statements in the PDS. I saw no reason not to accept his evidence on that point. [ 13 ] The Agreement of Purchase and Sale (“APS”) had a closing date of September 17, 2020. The buyers also had until August 17, 2020 to satisfy themselves as to the condition of the property. [ 14 ] Mr. Karr obtained a house inspection from Buyer’s Choice Home Inspections on Thursday, August 13, 2020: Ex. C1, Tab 10.

He was with the inspector when he looked into the attic space from a ladder. The inspector did not go into the attic space, saying that he could see well enough from where he was. Mr. Karr did not go into or take a look into the attic space. He relied on the home inspector’s observations. [ 15 ] In the report that the inspector delivered on Thursday or possibly the next day. There is the following note regarding the attic space: 7.1 (Exhaust) Exhaust hoses are damaged and not properly secured possibly from rodents.

Recommend contacting qualified contractor to evaluate and repair. [ 16 ] The note was accompanied by two colour photographs. One of these has two yellow arrows pointing to what appears to be crimping or damage to one of the exhaust hoses caused “possibly from rodents.” [ 17 ] Mr. Karr testified that he had some concern about the inspector’s observation. He called one or more HVAC companies, as well as a few contractors, but no one was available to come out on a weekend to conduct any investigation. He decided to accept that conditions

were satisfied as of August 17 th . [ 18 ] The closing took place. Mr. Karr and Ms. Cregan were planning on doing some painting before moving in. However, on the day of closing Mr. Karr was in a room in the house that he intended to use as an office. He heard the scuffling of some kind of animal in the ceiling above him. He went outside but could not see anything. He went inside and heard the sound again. He contacted a pest control company who came out on September 18 th . The technician was there for about half an hour.

He found some entry holes in the foundation that would allow entry into the exterior outside wall of the kitchen. He recommended bait and traps to deal with any animals that might be inside the house. He recommended a wildlife control expert (Skedaddle), who came on September 23 rd . He looked for entry points in the house and the garage. While there he looked in the attic space and found damage from a number of species, including mice, squirrels, rats and raccoons. [ 19 ] After Mr. Karr and Ms. Cregan moved fully into the house they noticed a foul smell in the kitchen.

Searching for its source they pulled out some of the kitchen cabinet drawers. As they did they began to find rodent damage—primarily holes that had been chewed into walls and baseboards behind the cabinets, as well as rodent faeces and urine stains. During their resulting investigations, and much like the unravelling of a sweater after pulling a loose thread, Mr. Karr and Ms. Cregan began to find signs of extensive intrusion of—and damage by—rodents (mostly rats).

Behind the walls in the kitchen and the drywall in the upper floor bedrooms they found insulation that had been chewed to form extensive nests, rodent faeces and urine as well as damage to joints and baseboards caused by the chewing of rodents. None of this was apparent from the outside. [ 20 ] I note that one of the baseboards that was removed by Mr. Karr and Ms. Cregan during their investigation and repair of the rodent- caused damage bore a sticker saying that it had been manufactured in March 2020.

That sticker satisfies me that this baseboard was one of those replaced by the contractor in the spring of 2020 when Ms. Bowes had the house spruced up. The removal of the baseboard revealed a hole that had been chewed into the base of the drywall behind it: see Ex. C1, Tab 4, figures 65-68. The removal of another baseboard (age uncertain) revealed a large hole that had been chewed into the wall at the foot of the wall: Ex. C1, tab4, figures 69-72. [ 21 ] Mr. Karr presented extensive photographic evidence of the damage in the walls and sub-floors that they found: Ex.

C1, tab 2 (damage to kitchen), figures 9-48; tab 3 (damage to attic); tab 4 (damage to bedrooms); tab 5 (damage to electrical wiring). That evidence as well as his testimony satisfies me on more than a balance of probabilities that there was extensive damage caused by rodents inside the walls of all levels of the house; and that that damage had been caused over some time. The question though is whether the defendant, when she filled out the PDS, was unaware of “any damage or hazards due to ... pests, rodents or insects.” Submissions [ 22 ] Mr Karr says that the damage in question was latent; that Ms.

Bowes knew about it but hid the damage from him; and that the rats, and their faeces and urine made the house unsafe and unhealthy. [ 23 ] Ms Bowes relies upon caveat emptor . She also says that she had no knowledge of any damage caused by rodents, and that in any event Mr. Karr had been alerted to the possibility of rodent damage by his inspector and chose to proceed with the purchase anyway. Analysis and Decision [ 24 ] The issue of whether a seller has misrepresented, hidden or failed to disclose defects in a property has come before this court many times: see the discussion in Forbes v.

Woodroffe 2022 NSSM 18 at paras.82-84. In essence, such purchases are subject to the rule of caveat emptor (“buyer beware”). The rule applies to patent defects—that is, those that are or should be reasonably apparent on visual inspection. [ 25 ] Caveat emptor does not apply to certain types of latent defects—that is, defects which are not discoverable through reasonable inspection.

It does not apply to a. latent defects that are dangerous, or b. latent defects which, while not dangerous in themselves, have been hidden or covered over by the seller. [ 26 ] Another way of putting the second exception is to say that a seller who covers over a patent defect cannot rely on caveat emptor

because they have made it impossible for the seller to identify the defect. [ 27 ] The damage to the house in this case was all latent (with one exception which shall be discussed). It was all behind cabinets or baseboards, and inside walls or under flooring. It was clearly not visible. [ 28 ] Was the defendant aware of such damage? The onus of establishing that she was lay on the claimant. On balance, I am satisfied that Ms.

Bowes a. was aware that rodents (and in particular rats) had caused fairly extensive damage to the house at some point in the past, and b. was aware that rodents and/or other animals were getting into the house at the time of sale, and, as a result, c. knew or should have known that there had been and was damage that had been and was being caused by animals at the time she signed the PDS. [ 29 ] I come to this conclusion for a number of reasons. [ 30 ] First, there is the evidence of actual holes that had been chewed into the base of walls in the upstairs bedrooms.

At least one of these holes existed at the time the March 2020 baseboard was installed over it. Another (the one in figures 69-72 of Ex. C1, tab 4) was so large that Ms. Bowes must have been aware of it at the time the baseboard was installed over it. [ 31 ] Second, I am satisfied on the testimony of Mr. Karr that animals were in the walls of the house at the time of sale. That being the case it strikes me as unlikely that Ms.

Bowes would not have heard the same sounds when she was there. [ 32 ] Third, there is the fact that she did acknowledge the existence of a significant problem with rodents and other pests, such as raccoons, in 2010 or 2011. Given that the house is in a subdivision with woods and there is composting going on in the area it seems likely that animal intrusions would be a common occurrence.

I note in this regard that she had seen raccoons on the roof of the house trying to get in at the time she was readying the house for sale, and that she had had a neighbour block various entry sites as a result. [ 33 ] All of this leads me to conclude that at the time she filed out the PDS Ms. Bowes knew or ought to have known that damage had been caused by rodents to the house, and that she knew or ought to have known that at least some of that damage had been covered over while the house, on her instructions, was spruced up for sale.

This is not to say that there is anything wrong or nefarious about making a house ready for sale. It is to say, however, that when someone covers over damage that is a clear sign or symptom of the presence of destructive rodents or other animals one has a duty to bring this to the attention of a buyer. Ms. Bowes’ statement in the PDS constituted a negligent representation as to a latent defect which she had had covered over. It is a statement that was relied upon by Mr. Karr and Ms. Cregan. I am also satisfied that had Mr.

Karr been advised that there was other rodent damage in other places in the house that he would have either asked for more time to investigate; or negotiated a better price; or backed out of the deal. As a result, I am satisfied that Ms. Bowes must bear some responsibility for what happened. [ 34 ] Having said that, I am also satisfied that Mr. Karr was contributorily negligent. He had been alerted to the possible existence of rodents—or at least, of damage caused by them. He even took some steps as a result of that knowledge. But in spite of that knowledge he proceeded with the purchase.

He did not ask for an extension in the condition completion or the closing dates. [ 35 ] Taking both findings into account I have decided to apportion liability equally between the parties. Each bears responsibility for what happened. I set that apportionment at 50%. Damages

[ 36 ] As a result of their discovery Mr. Karr had to replace the kitchen cabinets; replace the kitchen floor; and replace sections of drywall in the kitchen and the upstairs bedrooms. I am satisfied that these repairs were necessary as a result of the damage caused by rodents chewing on wood and insulation; making nests in the insulation; and their excrement in the walls and subfloors and behind kitchen cabinets. The list of damage was outlined at Ex. C1, Tab 9. [ 37 ] I was not satisfied that the repairs claimed with respect to the attic space were appropriate because, based on the house inspector’s report, Mr.

Karr did have notice that there was a potential issue in the attic. [ 38 ] On the other hand, I was satisfied that Mr. Karr had no reason to know that the problems and damage were so extensive and so current as to involve the kitchen as well. I find that the claim for building materials and the IKEA cabinets, countertop and flooring totalling $16,595.79 was reasonable. Mr. Karr is (as noted above) entitled to only half that amount, which works out to $8,297.90. [ 39 ] Mr. Karr and Ms.

Cregan also performed most if not all of the labour to install the kitchen cabinets and flooring as well as remove and replace the damaged insulation and drywall. Their total claim for labour is $18,262.80. It is based on an estimate as to how much time they spent doing this work at the current minimum wage. They did not keep time records, and do not know what the minimum wage in 2020 and 2021 was. While I am satisfied that something should be allowed for their labour, I was not satisfied that their approach was appropriate.

Neither one of them were experienced contractors or carpenters or IKEA cabinet installers. They did the work in their spare time. All of this no doubt extended the amount of time, whatever it was, beyond what experienced carpenters would do (albeit at a higher rate). Taking these factors into account I have decided to reduce their claim by 50% to $9,131.40.

Half of that is $4,565.70. [ 40 ] For these reasons then I will make an order that the defendant pay to the claimant a. $8,297.90, plus b. $4,565.70, plus c. $200.00 in costs, for a total of d. $13,063.60 DATED at Halifax, Nova Scotia this 9 th day of June, 2022 Augustus M. Richardson, QC Adjudicator