April 5th - 2010

LEGAL BEAT: Judge turns up the heat

When the buyer took possession of his Winnipeg house, he found that the space heaters had been removed, and the pipes were frozen.

When the buyer took possession of his Winnipeg house, he found that the space heaters had been removed, and the pipes were frozen. The furnace was not connected and, in fact, had been turned off two years before.

The MLS® Listing shows the "heating" in the house as "FORDD" and the heat fuel as "NGAS." The judge concluded that: "... it was reasonable for (the buyer) to assume, considering the representation in the listing agreement, that the furnace he saw in the house was working. There was no evidence that there was anything about the furnace that would lead a layperson to conclude that the furnace was not operational.

A layperson cannot be expected to do a professional inspection. Nor do I think a reasonable person would assume that the furnace was not working simply because space heaters are being used. In fact, unless it is otherwise apparent, I think it is reasonable for a person buying a home in Winnipeg (especially when the purchase and possession are in winter) to assume that the home has a heat source. (The buyer) was left with a home without one. I find that the information in the listing document and the failure of the defendant to tell the purchaser that the furnace was not working was deceitful. Moreover, it was a misrepresentation about something that made the house uninhabitable. (The buyer) is entitled to damages for the cost to replace the furnace."

Alzawawy v Mesa 2008 MBQB 248

MERV'S COMMENTS
The judge also noted some statements from previous cases …"Caveat emptor does not apply where the buyer relies upon representations by the seller and the defects in the property would not be detected by reasonable inspection. Silence and half truths can amount to a fraudulent misrepresentation."

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