A fair decision or is it just downright crazy?
A colony of bats discovered by buyers inside their homes sparked a dispute that ended in a British Columbia court, with Judge Judith Doulis calling it “a typical case of remorse from the buyer”.
Emmeline and Kevin Van Geemen purchased a home in Prince George, British Columbia on May 31, 2019. The 2 1/2 acre property included a 43-year-old structure on the banks of the Upper Fraser.
After moving in, the Van Geemen discovered the bat colony in the cathedral ceiling of the master bedroom. The new owners had no problem with the bats, which lived peacefully outdoors, but were understandably reluctant to share their indoor space with the flying mammals.
The Van Geemen bought the house from Eric Stevenson, who had acquired it from a bank in a foreclosure action more than four years previously. The structure was a classic “repairer superior” and Stevenson remodeled and modernized the house.
At the time of Stevenson’s purchase, there were two bat houses attached to the house. The property was teeming with mosquitoes as spring arrived and bats have a voracious appetite for flying insects.
Stevenson and his partner lived in harmony with bats and saw them as an ecological asset. During renovations, he discovered and removed dried bat guano from behind cedar planks in the bedroom.
When he decided to sell the property in April 2019, Stevenson signed a declaration of ownership. This form has virtually disappeared from use in Ontario after giving rise to so much litigation.
On it, he answered “no” to questions about whether he was aware of any insect or rodent infestation, or any hidden material defects in the structure.
Shortly after the Van Geemens moved in, an exterminator alerted the new owners to a bat infestation behind one of the master bedroom walls and told them that bats could carry the rabies and that their guano is poisonous.
The Van Geemen spent over $33,000 to fix the bat problem, then sued Stevenson to recover their expenses.
The claim was based on the legal principle of negligent misrepresentation, which gives rise to what the courts have called a duty of due care. The Van Geemens said Stevenson failed to disclose the bat colony and did not exercise due diligence in his efforts to evict the bat from inside the home.
After a six-day trial earlier this year, Judge Doulis delivered her 15,000-word ruling last month and wrote, “not everyone considers bats unwelcome guests.” She did, however, rule that a large colony of bats roosting in the ceiling was a hidden (or latent) defect. But since Stevenson was unaware of the infestation, the court ruled that he had not acted negligently in signing a declaration since he was unaware of any insect or rodent infestation. , or unrepaired damage. The Van Geemen’s request was denied.
The takeaway from this case is that buyers who are concerned about infestations of insects, rodents, or flying mammals should include an appropriate warranty in their purchase contracts.
Buyer’s remorse? Who can blame them?
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