Canadian Underwriter

Couple sued over basement flooding after selling fixer-upper

January 20, 2020   by Greg Meckbach

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A Kelowna couple have been sued for $168,000 after a house they sold suffered basement flooding.

In Brunning v. Cummings, released Jan. 13, Supreme Court of British Columbia Justice Gordon Weatherill awarded the damages to Cheri and Joel Brunning. The damages are based in large part on how much it would cost the new owners to install a perimeter drainage system on their home.

Robert and Benigna Cummings were buying fixer-upper homes that they would renovate and then flip. Located in Kelowna’s Glenrosa subdivision, the home the Cummingses sold to the Brunnings for $371,000 in August 2016 was built in 1974. The Cummingses bought the home in 2014 for $210,000 on a foreclosure sale. They renovated the home in 2015 and started renting it towards the end of that year.

It just so happens Cheri Brunnings has a background in flood restoration, having worked for restoration companies for about 11 years.

In early 2016, the Cummingses had been renting the home to a couple, who in turn sub-letted the basement suite to relatives. The basement started flooding in February of that year, shortly after the tenants moved in.

To address that basement flooding, Cummings did some work in early 2016 – including digging a sump well at the rear foundation wall, installing a sump pump, and putting Big-O and drain rock along the footings at the back of the home. Meanwhile, the people living in the basement moved upstairs.

When they put up their home for sale in March 2016, the Cummingses signed a property disclosure statement, answering “no” to the following question: Are you aware of any moisture and/or water problems in the walls, basement or crawl space? To this, they added the following comments: “There was some seepage recently on basement floor. This was rectified by installing a sump pump and drain tile at back of house.

When the Brunnings agreed to buy the house, they had no concerns about water seepage issues in the basement, even after having it inspected. They did not communicate with the tenants who experience the basement flooding.

In July 2016 (a month before the Brunnings took possession), the tenants reported basement flooding to the Cummingses. That incident was not initially reported to the Brunnings.

The following February (six months after they took possession and moved in), the Brunnings said ground water was coming into the basement through cracks in the concrete slab. Water was also seeping through the basement door and wall areas. The Brunnings installed five additional sump pumps and eventually had to gut the basement to the stud walls. They tried to repair the cracked floors, including using a concrete sealer, but water continued to rise through the cracks.

The Brunnings sued the Cummingses. A trial was held in Kelowna in the fall of 2019. Justice Weatherill found the defendants committed fraudulent misrepresentation, which required the plaintiffs to prove either: 1) the defendants made a representation knowing it was false, or 2) that the defendants were reckless and did not know whether the representation they made was true or false.

Justice Weatherill found the defendants improperly failed to report the July 2016 flood event (affecting the previous tenants) to the new owners. The Cummingses argued that was a non-event. They also argued they resolved the flooding issue by installing a sump pump and drainage system. The statement in their property disclosure form – that there was some seepage recently on the basement floor and that it had been rectified – was therefore true.

When Cummings installed a sump pump in 2016, the water was pumped into a white PVC stand-pipe in the yard.  This was described by Justice Weatherill as a “bandaid solution.” Where the pipe leads to is not known.

“Reasonable people in the defendants’ shoes, knowing the nature of the ground water and water ingress issues would have sought and obtained advice from a groundwater professional, such as a geotechnical engineer, to properly remediate the problem,” Justice Weatherill wrote.

A geo-technical engineer hired by the plaintiffs concluded the house is in a low area with high groundwater levels. This caused the ground around and underneath the basement slab to be saturated.

Also testifying was the City of West Kelowna’s public works director, who said ground water has been a concern in the area for years. The subdivision lacks a modern curb and gutter system, and the ditches and road drains are not “state of the art.”

The plaintiffs’ expert said the connection between the footings and foundation walls are not water tight. So without a proper drainage system at the footings, the water will infiltrate cracks in the slab, foundation walls or through the unsealed connection between the footings and the foundation walls.

The plaintiffs’ expert recommend they upgrade the perimeter drainage, install a sump pump in the basement, regrade the ground to direct water away from the house and find a suitable place for the water to be pumped. If those measures fail, the expert recommended raising the entire house one meter and adding more soil volume to assist with water dispersion.

The plaintiffs had sought damages of $311,000, arguing the home they bought for $371,000 is actually worth $60,000. In the alternate, the plaintiffs sought damages for the cost of raising the house by one metre, installation of a perimeter drainage system, and the remediation/replacement of the driveway, landscaping and fencing that would be needed afterwards.

A contractor quoted $285,000 as a “ballpark” to raise the house a metre, pour a new basement slab, set the house back on a new foundation, install a new drainage system including drain tile and drain rock, put a new block retaining wall at the front of the house, and to backfill and restore the basement to the condition it was before the spring 2017 flooding.

Ultimately they were awarded $168,000 in damages. Of that $140,000 was for remediation costs, including $100,000 cost of improving the draining system plus various expenses including $10,000 for driveway replacement, drywall, painting and other work.

The award also includes special damages of about $8,220 which includes geo-technical report, pumps, shop vac, camera inspection among other items.

On top of that, the plaintiffs got non-pecuniary damages of $20,000 to cover the inconvenience of moving their family into the upstairs, moving their basement belongings to a storage container and mental distress.

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