February 11th - 2008

LEGALBEAT: Buyers should have asked about mice

The buyers viewed a home for sale with a REALTOR® and while other potential purchasers were present, they did not observe any evidence of mice.

The buyers viewed a home for sale with a REALTOR® and while other potential purchasers were present, they did not observe any evidence of mice. They acted relatively promptly and bought the home very soon after they saw it. They did not give the house a close inspection nor did they have the house inspected by an independent inspector. They made no inquiries of whether there were or were not mice in the house. They did not look in cupboards or closets and there was no apparent concern about mice at the time. The sellers made no reference to the presence of mice in the house.

There was in fact a serious mouse problem but, absent any warranty or fraudulent representation, the buyers' claim would fail based on the doctrine of Caveat Emptor. The seller testified that there were no mice and any droppings that did show up after vacating the home were caused by her pet hamster that was allowed to run free throughout the house. However prior to the acceptance of the offer a report indicated that virtually the entire house was treated with Blox in closed bait stations with open bait stations under the sink, in the kitchen, along with bait stations under the fridge. The report indicated that the seller had removed the poison.

The judge said that a hamster could not have left the droppings. But, was the failure to disclose the presence of mice a positive misrepresentation that warranted a finding of fraudulent misrepresentation? Was there a misrepresentation in the Manitoba Seller's Property Condition Statement when the seller answered 'no' to the Question: "To your knowledge, during your ownership of the property, has there ever been any damage to the buildings due to wind, fire, water, moisture, insects or rodents?" The evidence did not disclose any structural damage as that expression is commonly understood. The judge also referred to the lengthy warning contained in the SPCS. The buyers lost.

Wiebe v Loconte 2007 MBQB 19

MERV'S COMMENTS
The judge also noted that mice in residential homes are not an unusual occurrence and if their existence was as fearful as it no doubt was to the buyers, they ought to have inquired about it beforehand or obtained an inspection.

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