Buyer beware when it comes to home purchase

[Roy D. Cooke, Sr]

http://www.thestarphoenix.com/news/B...980/story.html

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Buyer beware when it comes to home purchase







By Les MacPherson, The StarPhoenixDecember 13, 2011




Today, we're going to play You Be the Judge.
The rules are simple.
I give you the facts of a case recently before the courts, and you make a ruling. Then you learn if your ruling matches that from the actual court.
On the docket for today is the case of the disgusting mouse infestation, heard in provincial court in Saskatoon.
The buyer of a Saskatoon condo is suing the seller for the cost of repairs. Since we don't usually cover civil cases, we'll call the litigants Mr. and Mrs. Buyers versus Mrs. Sellers.
It helps that the facts are not in dispute.
The Buyers bought the condo and took possession in June of last year. In spite of a musty smell in the basement when they were shown the property, they did not have a home inspection done.
Their Realtor told them an inspection was not necessary, they testified. Like quite a few other new homeowners, they soon would find out otherwise.
Soon after they moved in, the Buyers took out a wall between the kitchen and the den. Inside they discovered three dead mice. Exterminators later found in the basement walls a whole mouse city, with an estimated 100 nests.
While no live mice were present, there were plenty of dead ones, some covered in maggots.
Framing and drywall were ruined by mouse urine.
Indications were that an exterminator had previously been there. A gap around a basement window was sealed with copper stuffing and spray foam insulation, and poison baits had been left among the mouse turds in the ceiling.
Of course, none of this was mentioned in the list of features.
On the contrary, Mrs. Sellers had signed a disclosure statement declaring she was unaware of hidden damage from rodents, among other things. She further agreed as a condition of sale to pay up to $20,000 to repair any such damage.
The Buyers were suing for the whole amount, which would not quite cover the estimated cost of repairs.
It did not help the Buyers' cause that Mrs. Sellers was a sympathetic defendant.
Then 83 years old, she had lived in the condo for more than 30 years. She admitted to having had mice four years earlier.
When she couldn't empty the traps fast enough, she had called in professional exterminators. As far as she knew, they had dealt with the problem.
She had seen no mice since.
Neither had the Buyers seen any live mice, only maggoty dead ones.
That's the evidence.
So you be the judge.
Should she pay for repairs?
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If you say she should not, you are on side with the provincial court Judge Donna Scott, who ruled in the actual case.
Judge Scott found that Mrs. Sellers did not misrepresent her property.
She could not have disclosed the damage because she was unaware of the mouse necropolis behind the drywall.
Neither was she negligent. When she had mice in her condo, she called in a professional and thereafter saw no more mice.
The judge also found that, by virtue of legal precedents, the only damages Mrs. Buyers had to disclose were structural damages.
Since the mouse damage was not structural, she would not have had to disclose it even if she had been aware of it.
To the Buyers, the judge delivered a gentle admonishment.
They viewed the condo only once and overlooked a bad small.
For them to rely entirely on the vendor's disclosure statement was unreasonable, especially so when it was stapled to an information sheet urging a home inspection.
This probably would have identified the source of the smell, said the judge.
Her decision raises the question:
Do these people never watch Mike Holmes?
If the Buyers came away from court empty-handed, they at least they learned some Latin: Caveat emptor means buyer beware.
What it has meant legally for about 2,000 years is that we cannot expect compensation for faulty merchandise unless those faults were concealed by fraud.
Like a lot of people thrilled with the prospect of a new home, the Buyers simply were careless.
The real villains here were the mice.
Don't let anyone tell you they are cute.

[Vern Mitchinson]

Current SOP excludes livestock from the inspection.

2.2. Exclusions:

I. The inspector is not required to determine:

the presence of evidence of rodents, animals or insects.
the presence of mold, mildew, fungus or toxic drywall.
the presence of airborne hazards.
the presence of birds.
the presence of other flora or fauna.
the air quality.

That being said, IMHO does not absolve the HI from dealing with evidence of livestock being present. I've had inspections where my client did not want to look at or a deal with the dead bodies that were laying around during the inspection but then called me to complain that the house had mice in it. I simply pointed to the warning in the report that dean mice were present and that this was an indication of a mouse problem that should be dealt with before closing.
The final decision is the buyer's and the buyer has to take responsibility for their decisions. Since the HI has been hired as an expert he better be honest and inform the client. If the Realtor does not like it, tough. The HI is responsibility to the client and must report all visible deficiencies including any evidence of livestock being present.
It's all about CYA (cover your a**)
In this case the judge had sympathy for the little old lady but odds are the judge would not show the same for the HI. After all he/she is supposed to be the expert.

[Russell J. Hensel]

I don't think she should pay and agree with the court. You just can fix stupid (buyers). Good thing they saved the $350 on the inspection...

[Stephen W. Stanczyk]

Originally Posted by vmitchinson

Current SOP excludes livestock from the inspection.

That being said, IMHO does not absolve the HI from dealing with evidence of livestock being present.The HI is responsibility to the client and must report all visible deficiencies including any evidence of livestock being present.

Vern, I had to really laugh at this regional difference. Livestock? I have never heard rodents called livestock as that term is limited to cows, horses and large farm type animals down here. I can just see the report now.... Nothing much in the crawl space except for the dead cows and sheep. I didn't seen any live cows or sheep at time of inspection......

[Vern Mitchinson]

I'm stretching the meaning a bit but when I looked it up on wikipedia and found this;
Older English sources, such as the King James Version of the Bible, refer to livestock in general as "cattle", as opposed to the word "deer", which then was used for wild animals which were not owned. The word cattle is derived from Middle English chatel, which meant all kinds of movable personal property,[2] including of course livestock, which was differentiated from non-movable real-estate ("real property"). In later English, sometimes smaller livestock was called "small cattle" in that sense of movable property on land, which was not automatically bought or sold with the land. Today, the modern meaning of "cattle", without a qualifier, usually refers to domesticated bovines

[ROBERT V. YOUNG]

Originally Posted by rhensel

I don't think she should pay and agree with the court. You just can fix stupid (buyers). Good thing they saved the $350 on the inspection...

Agree.
Well worth that saved money.