September 6th - 2004

Merv's Column

The buyer sued the sellers who knew or ought to have known that there were latent defects in the house they had constructed themselves, lived in and then sold to her for $375,000.

Well built” or not?
The buyer sued the sellers who knew or ought to have known that there were latent defects in the house they had constructed themselves, lived in and then sold to her for $375,000.

Shortly after taking possession of the house the buyer observed some cracking along the 19' high centre bearing wall. She also noticed that the house appeared to be excessively damp and that the basement had a damp musty odour. These problems were not apparent when making her offer. In the "granny suite" beneath the garage, mould was so apparent that those premises were unusable. Personal possessions stored in the basement became mildewed.

There was extensive mould not only in the basement, but within the walls of the house. The mould was of a kind dangerous to the health of the occupants of the house. The judge found that the mould was the result of two latent defects which rendered the premises dangerous.

The Agreement of Purchase and Sale was a standard Ontario Real Estate Association Agreement of Purchase and Sale without warranty for any suitability of use. The Listing Agreement indicated that this resale house was "well built.” This statement was not part of the Agreement of Purchase and Sale, but the buyer was aware of it and relied upon it to her detriment.

The Appeal Court decided that the sellers were liable for negligent construction and awarded $100,000 for the costs of repairs.

Mariani v. Lemstra ONSC 5635-93

 

MERV'S COMMENTS
The house was not only not well-built; it was dangerous due to the construction and the mould. Builders, even private ones, can be liable for dangerous premises.

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