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Fenlon v Newton, 2019 CanLII 10130 (ON SCSM)

February 22, 2019

INTERESTING CASE:
Fenlon v Newton, 2019 CanLII 10130 (ON SCSM)

SUMMARY:
1) Buyer seeking damages of $11,618.25 plus for:
a. breach of contract;
b. negligent misrepresentation

2) Parties entered into an Agreement of purchase and sale during the “hot” real estate market and to “win” the Buyers waived a home inspection

3) Agreement had the following condition: “The seller represents and warrants that the swimming pool and equipment are now, and will be when opened in the spring of 2016, in good working order. The parties agree that this representation and warranty shall survive and not merge on completion of this transaction.”

4) When the house was listed for sale, the pool was open and Buyer and her real estate agent, had every opportunity to inspect the pool and the pool equipment

5) After closing and taking possession, the Buyer alleges that she noted several deficiencies with the Appliances and that the power bar for the central vacuuming system had been taken by the Seller

6) Buyer opened the pool in the spring of 2016 and argues that the pool had not been closed properly the year before and had not been properly maintained

7) The Sellers deny the allegations in their entirety and further acknowledge taking the central vac power bar, they claim it was not a chattel, not listed in the Agreement of Purchase and Sale, and therefore not part of the sale of the home

AGENT EVIDENCE:
1) The Buyer’s real estate gave evidence that the house inspection was waived by the Buyer due to the intense competition

2) The buyers Agent inspected the home with the Buyer - a general inspection and she did not claim to have any particular experience or knowledge in building inspections - She recalls looking at the pool, but does not really remember the condition of the pool at the time of her inspection

3) She believes the pool was covered for the winter, but she could not be sure and had no notes or file with her to aid in her memory or recollection of the events surrounding this particular home purchase

BUYER’S EVIDENCE:
1) she had purchased homes prior to this home and did have home inspections performed in the past

2) Her evidence was that she had never owned a pool in her life, had no experience with pools, and relied on the pool experts she hired (Bud’s Spas and Pools) to give her advice – who told her that the pool was in poor condition and had been improperly maintained – all hearsay as she did not call any evidence from Bud’s

3) She submits that she replaced all pool equipment and the pool liner. She did not consider attempting to repair the pool equipment or pool liner as she was told to replace everything by the pool experts.

4) Approximately two weeks after moving into this home, the Buyer began noticing a mouse infestation, being rodent droppings behind appliances and in the kitchen, bite marks in and on food packaging, and she saw a mouse run across the floor sometime in the middle of January 2016.

5) After moving in, the neighbours told her that everyone in this area had problems with mice given that the homes in this area were next to an open field - None of the neighbours referenced by the Buyer were called to give evidence

During cross-examination, the Buyer acknowledged that the cuts in the pool liner were likely made by the pool professionals she hired

Buyer led no evidence that the washer was not in proper working order. She gave evidence that she did not try to have the washer repaired given the age and condition of the washer. She self-diagnosed the issue with the washer being a non-operative agitator

Again, there is absolutely no evidence that the washer was not working properly, or if it was, that it could not have been repaired at much less expense.

The Plaintiff did not give any prior warning to the Defendants of the problems she was encountering with the home. She did not consult with her real estate lawyer after the purchase of the home, but instead relied on the advice provided to her by her realtor to simply rely on the Agreement of Purchase and Sale and issue a claim in Small Claims Court

Findings and Conclusions
Buyer failed to persuade the Court concerning any of the allegations regarding the deficiencies and misrepresentations. There is no evidence whatsoever that the Defendant attempted to conceal any defect or misrepresent the condition of any equipment. The Plaintiff had every opportunity to inspect the home and retain a qualified home inspector, but she chose not to do so.
In every aspect of her claim, the Plaintiff has failed to meet her burden of proof.

TAKE-AWAYS:
1) REGISTRANTS: Take photos and make notes for the record – advisable to keep a transaction journal with a date and time log with pictures in so far as possible

2) Always obtain an inspection in so far as possible

3) Raise your concerns with your Real Estate lawyer before commencing legal proceedings

4) Have your evidence in order when attending a trial

5) Do not self-diagnose – obtain reports that can be substantiated

6) Do not seek legal advise from your Registrant – consult your attorney

https://www.canlii.org/en/on/onscsm/doc/2019/2019canlii10130/2019canlii10130.html?searchUrlHash=AAAAAQALcmVhbCBlc3RhdGUAAAAAAQ

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