Ken Haviland - v. -, 2011 SKPC 144

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: September 14, 2011 Citation: 2011 SKPC 144 File: 19/10 Location: Wynyard _____________________________________________________________________________ Between: Ken Haviland - and - Wanda Pickering Ken Haviland For the Plaintiff Richard Leland For the Defendant _____________________________________________________________________________ JUDGMENT J.A. PLEMEL , J _____________________________________________________________________________ [ 1 ] The Plaintiff purchased a house from the Defendant in 2009 in Foam Lake, Saskatchewan.

The following year the basement flooded. The issue is whether the Defendant is liable for water damage done to the basement and for the cost of measures taken by the Plaintiff to prevent flooding in the future.

[ 2 ] The Plaintiff claims his total costs were $32,257.25 but in order to bring it within the jurisdiction of this Court he limits his claim to $20,000.00 plus interest and costs of the application. [ 3 ] The parties entered into a written Agreement For Sale of the house in question on April 24, 2009. This was a private sale. The Plaintiff, along with his fiancée, Mary Lou Patrick, looked at the house twice before entering into this agreement. The Defendant was there with them on both occasions. On the second occasion there was a considerable amount of water on the basement floor which was apparent to all.

A diagram filed by the Plaintiff shows that the water was in one pool which extended into portions of the laundry room, gym, hallway and a small bedroom. The parties saw it, stepped in it, and commented on it. It was not hidden in any way. [ 4 ] Possession date, according to the Agreement For Sale, was June 9, 2009. The Plaintiff and Ms. Patrick moved in, on or about July 4, 2009. The basement was dry at that time and the Plaintiff subsequently did renovations to the basement which included installation of doors, flooring, trim and repair and painting of walls.

The Plaintiff testified that he did not think the Agreement For Sale was signed on April 24 th as is stated in the written agreement and that the possession date referred to may not be accurate. It is not necessary for me to determine whether he is correct, or whether the agreement, prepared by a lawyer and signed in the lawyer’s office is correct as it is not really material to the issues I need to address. He initially testified that the asking price for the house was $75,000.00 but that he bought it for $72,000.00.

However, in cross-examination, when shown the written agreement he recalled that he paid $78,000.00 and that the asking price had been $85,000.00. His memory surrounding the purchase and possession date of the house was not that clear. [ 5 ] I accept the Defendant’s testimony which was to the effect that she honestly believed that the water problem in the basement was a recurring problem any time downspouts were not kept on, window well covers were not kept properly installed or the sump pump was not plugged in.

I accept as well that on their second visit, one downspout had only recently been put back in place, the sump pump was not plugged in and that she believed these two facts caused water to be on the basement floor on that occasion. The Plaintiff was aware of the fact that a downspout had just recently been put on because the Defendant told him so and also because of his visual examination of the downspout and the surrounding area.

He also attributed the amount of water on the floor to the fact that a downspout had been off. [ 6 ] The Defendant had purchased this house about five years earlier, from an elderly woman who had lived there for many years previously. That woman had told her at the time she purchased it, that she would have no problems as long as the downspouts were always kept on, the window well covers were firmly in place and the sump pump was plugged in and working. She accepted what that woman told her and the Defendant passed this information on to the Plaintiff. [ 7 ] The Defendant never did occupy the house herself.

Instead, during the time she owned it, she rented it to Darlene Cooper, who was called as a witness by the Plaintiff. I am satisfied that every spring there were water problems in the basement, usually requiring Darlene Cooper to mop up water accumulating on the floor in one area or another of the basement. I am also satisfied that these incidents were routinely reported by Darlene Cooper to the Defendant as they occurred. Darlene Cooper and the Defendant were on friendly terms and Ms. Cooper simply dealt with the problem by mopping up the water.

Sometimes the Defendant would reduce the rent. [ 8 ] I accept the Defendant’s testimony that she attributed water problems to the fact that Ms. Cooper routinely left off a downspout or removed window well covers or that she sometimes did not have the sump pump plugged in. One of the downspouts had a vent which, when turned the wrong way, allowed the water to run onto the ground near the house rather than away from it. Darlene Cooper admitted that she was often neglectful about the downspouts and window well covers.

She thought she always kept the sump pump plugged in although, as I have already mentioned, I accept that on the date of the Plaintiff’s second visit for inspection purposes, it was not. Darlene Cooper was frequently reminded by the Defendant to check the downspouts and window wells to prevent the water problem in the basement. However, she failed to do so.

Her daughter who lived with her, preferred to remove one of he window well covers to allow more light into her basement bedroom. [ 9 ] In the spring of 2010, after having done renovations to the basement, the Plaintiff went to Ontario for personal and family reasons. He remained there for five weeks. Ms. Patrick stayed in the home in Foam Lake. During this time there was severe flooding in the basement of the house. I am satisfied that this flooding was much more severe than anything Darlene Cooper or the Defendant had experienced in the past.

The evidence is that the spring and summer of 2010 were exceptionally wet due to the amount of precipitation. Ms. Patrick was left to deal with the flooding as best she could, with the help of others. Duane Grona, owner and manager of the Rona Building Centre in Foam Lake, was called by the defence and testified that many houses on the east of the town’s main street had water

problems in that spring and summer. The house in question was on the east side of Main Street. He also testified that he was called by Ms. Patrick to examine the basement while the severe flooding was occurring. He testified that when he attended the window well covers were not well sealed and, when he did a water test, water ran in past the window wells. Other than that, the majority of the water was coming in through the basement floor in an area referred to as the gym. [ 10 ] All renovations done by the Plaintiff in the previous months were either removed or got damaged by water.

A hole was intentionally punched into the concrete floor to put in a second sump pump. Following the flood, the Plaintiff spent considerable time and incurred considerable expense in an attempt to make the house more resistant to flooding in the future and in again renovating the basement. Among other things he put weeping tile around most of the house and installed a waterproof membrane around the outside of most of the basement. Some of the work was contracted out and some he did himself.

It involved much digging, ripping out of a thick concrete patio, and landscaping. [ 11 ] Many home owners in Foam Lake received payments under a provincial disaster relief program because of flooding in that community in 2010. The Plaintiff himself received $5,000.00 through that program for damage which is the subject of the claim now before this Court.

I note that he did not mention this in his examination-in-chief and that this fact was only brought out in cross- examination of him. [ 12 ] In 2011 he sold the house for $138,000.00. [ 13 ] The weeping tile and membrane which I referred to previously, were installed by Jason Purdy who was a journeyman mason. He was called as a witness at trial by the Plaintiff. He was qualified as an expert at trial in his field, and permitted to give opinion evidence concerning the building, repair and maintenance of concrete and masonry basements.

He testified this home had no weeping tile and he recommended to the Plaintiff that it, along with a waterproof membrane, be installed around the basement to prevent similar problems in the future. He testified that the water table was high in 2010 when he installed the weeping tile. He testified that the basement was otherwise structurally sound. THE APPLICABLE LAW [ 14 ] Sinclair J. of the Manitoba Court of Queen’s Bench thoroughly reviewed the relevant law in Fitzhenry v. Vaccaro , 2009 CarswellMan 177 .

He stated the following: 69 Caveat emptor - "buyer beware" - is a principle often invoked in house purchases to defend against claims that what the purchaser got was not what he thought he was getting. It places responsibility on a purchaser to accept the responsibility of inspecting what he is buying to ensure that he is getting what he intends. Should he fail to examine, then a purchaser cannot be heard to complain. However, certain defects may not be apparent, even on a reasonably close examination, and a purchaser will not be held responsible where a defect is hidden.

Defects therefore are separated into those that are apparent (patent defects) and those that are not (latent defects). 70 In Halsbury's Laws of England , 4 th ed., vol. 42 at 47, para. 51 the basic principles governing are laid down: Patent defects of quality. Defects of quality may be either patent or latent.

Patent defects are such as are discoverable by inspection and ordinary vigilance on the part of a purchaser, and latent defects are such as would not be revealed by any inquiry which a purchaser is in a position to make before entering into the contract for purchase.The vendor is not bound to call attention to patent defects; the rule is ' caveat emptor '. Therefore a purchaser should make inspection and inquiry as to what he is proposing to buy.

If he omits to ascertain whether the land is such as he desires to acquire, he cannot complain afterwards on discovering defects of which he would have been aware if he had taken ordinary steps to ascertain its physical condition, and, although as a general rule a vendor must deliver property corresponding to the description contained in the contract, yet an error in the particulars or description of the property in the contract is not a ground of objection if it is readily corrected on inspection. 71 It is noteworthy that Halsbury's suggests that not only does a purchaser have an obligation to inspect, but he also has an obligation to "make inquiry".

72 In Cardwell v. Perthen , 2006 BCSC 333 , [2006] B.C.J. No. 455 (B.C. S.C.), the British Columbia Supreme Court considered the question of the vendors' liability to a purchaser of a residence for negligence and negligent misrepresentation relating to renovations done to a house prior to sale by the defendant. At paragraph 122 the court stated: The distinction between patent and latent defects is central to a vendor's obligation of disclosure under the doctrine. Patent defects are those that can be discovered by conducting a reasonable inspection and making reasonable inquiries about the property.

The authorities provide some guidance about the extent of the purchaser's obligation to inspect and make inquiries. The extent of that obligation is, in some respects, the demarcation of the distinction between latent and patent defects. In general, there is a fairly high onus on the purchaser to inspect and discover patent defects. This means that a defect which might not be observable on a casual inspection may nonetheless be patent if it would have been discoverable upon a reasonable inspection by a qualified person. ................... 75 In Kemp v. Leshchyshyn , 70 A.C.W.S. (3d) 738 (Man.

Q.B.) , Hamilton J. (as she then was) stated at paragraph 6: ............. The doctrine of caveat emptor will not protect a seller who has made fraudulent misrepresentations by act or omission. If there is no deceit by the seller, then the purchaser has no remedy unless there was a warranty from the seller. [ 15 ] In this case there was a patent as opposed to a latent defect. There was water on the basement floor during the second inspection. Unlike most cases which deal with defects in properties which are sold, there is no suggestion that the Defendant attempted to hide the problem.

The Plaintiff alleges that she knowingly misrepresented the cause of the problem. I accept that she told them what the former owner had told her which is that this problem occurred when the downspouts or window well covers were not properly in place or when the sump pump was not functioning. Because she never lived there, and because she believed, for good reason, that her renter routinely neglected to assure that these three things were taken care of, I am satisfied she did not intentionally misrepresent any facts to the Plaintiff.

Therefore it cannot be said that she made fraudulent misrepresentations to the Plaintiff. [ 16 ] It is possible that prior to the exceptionally wet spring of 2010, proper maintenance of the downspouts, window well covers and sump pump may well have taken care of the water problems in the basement. The former owner told the Defendant that is what was required to prevent water problems in the basement. Following her purchase her renter, Darlene Cooper, never properly maintained them. While Ms.

Cooper testified that water problems would continue even after she reinstalled the downspouts or window well covers, I do not know how long after their reinstallation the problems continued. Of course seepage into the basement would take some time to stop after these items were put in place due to water being in the ground surrounding the house. The Defendant made reference to this in her testimony and stated she thought that the improper maintenance of these three items, or their proper placement only after water showed up in the basement after snow melted or rain fell, was the cause of the problem.

I am satisfied that she gave the Plaintiff her honest opinion about the cause of the problem. [ 17 ] It was open to the Plaintiff purchaser to retain an appropriate expert to inspect the property to determine the cause of this patent defect and not rely on the opinion of the vendor. The vendor did nothing to prevent him from doing so. The Plaintiff chose to rely entirely on his own personal inspection of the property and on the opinion of the vendor.

CONCLUSION [ 18 ] Having regard to the evidence presented at trial and the applicable law in this case, I conclude that the Plaintiff has failed to prove his claim on a balance of probabilities and the claim is therefore dismissed. No costs are ordered.

_____________________ J. A. Plemel, J