July 21, 2021 by Greg Meckbach
A couple who discovered a leaking bathtub after moving into their new home cannot get compensation from the sellers.
A “reasonable inspection” would have revealed a water problem before Tyler and Keva Luscombe bought their home in 2020, the British Columbia Civil Resolution Tribunal ruled in Luscombe v. Harris, a decision in a $3,800 small claim released July 15, 2021.
The Luscombes bought the home from Cheryl Harris and her daughter. Both Harris and her daughter had owned the home. Immediately before they sold it to the Luscombes, Harris’s daughter lived in the home while Harris did not.
Harris and her daughter gave the Luscombes a property disclosure statement. Harris’s daughter answered the questions on the property disclosure statement, but both Harris and her daughter signed the property disclosure statement.
The Luscombes moved into new home Dec. 15, 2020.
“Shortly afterwards, while the bathtub was being used, they heard dripping and saw water coming from the ceiling under the bathtub,” CRT member Lynn Scrivener wrote in Luscombe v. Harris.
Initially, the Luscombes replaced the bathtub drain but that did not stop the leak. Later the Luscombes noticed holes on the inside edge of the bathtub. It turned out that the bathtub leaks if it is filled above the holes.
The Luscombes argued that Harris should have to reimburse the Luscombes $682.50 for repairs they made to the ceiling below the tub as well as $3,136 for replacing the bathtub.
The Luscombes initially named both Harris and her daughter as respondents in their CRT dispute. The Luscombes were unable to serve Harris’s daughter with a CRT dispute notice, and Harris consented to being the sole respondent. The CRT adjudicates several different categories of disputes in B.C. including claims of less than $5,000.
In the Luscombes’s claim, they allege that Harris did not disclose the previous water damage in the property disclosure statement. For her part, Harris agreed there was a damp area on the dining room ceiling below the bathroom in 2019. A hole had been cut into the ceiling but a building professional was unable to determine why the ceiling had been damp. Several months later, a relative of Harris patched the hole and the patch was visible when the home was sold.
The Luscombes lost their case because they could not convince the CRT that Harris had actively concealed any problems with the bathtub or ceiling. Also, Scrivener was not convinced that Harris failed to give the Luscombes Harris’s actual current knowledge of the property on the property disclosure statement. This is why the CRT ruled that Harris did not breach the contact to sell the home.
Scrivener explained that sellers are liable if they fail to disclose “latent defects” if:
The Luscombes were aware of the ceiling damage and did not ask that it be repaired, noted Scrivener. As for the holes in the bathtub, those could have been discovered through a “reasonable inspection,” wrote Scrivener.
“While admittedly inconvenient, I find that holes in a bathtub would not make the home dangerous or unfit for habitation. I find that, based on the evidence before me, the bathtub holes are not latent defects.”
There are two types of defects: patent and latent, Scrivener explained.
“Patent defects are those that can be discovered by conducting a reasonable inspection or inquiry about the property. A seller does not have to disclose patent defects to a buyer, but they must not actively conceal them.”
Feature image via iStock.com/sl-f