Bats in bedroom not seller’s fault, B.C. court finds

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A bat colony discovered by buyers inside their homes sparked a dispute that ended in a British Columbia court, with Justice Judith Doulis saying it was “a archetypal case of buyer’s remorse ”.

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 shores of the Upper Fraser River.

After moving in, the Van Geemens discovered the bat colony in the cathedral ceiling of the master bedroom. The new owners had no problem with the bats that lived peacefully outside, but naturally shrank from sharing their indoor space with the flying mammals.

The Van Geemens bought the house from Eric Stevenson, who had acquired it from a bank in foreclosure action more than four years earlier. The structure was a classic “fixer upper” and Stevenson renovated and upgraded the house.

At the time of Stevenson’s purchase, there were two bat houses attached to the house. The property was teeming with mosquitoes when spring came, 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 the renovations, he discovered and removed dried bat guano behind cedar planks in the bedroom.

When he decided to sell the property in April 2019, Stevenson signed a Property Disclosure Statement. This form has practically disappeared from use in Ontario after giving rise to so much litigation.

On this, he answered “no” to questions as to whether he was aware of a possible infestation by insects or rodents, or of any hidden material defect in the structure.

Shortly after the Van Geemen moved in, an exterminator alerted the new owners of a bat infestation behind one of the walls in the master bedroom and told them bats may be carriers of the rabies and their guano is poisonous.

The Van Geemens spent over $ 33,000 to fix the bat problem, then sued Stevenson to recoup 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 diligence. The Van Geemens said Stevenson did not disclose the bat colony and did not use due diligence in his efforts to expel the bat from inside the house.

After a six-day trial earlier this year, Justice Doulis delivered her 15,000-word decision last month and wrote: “Not everyone sees bats as unwelcome guests. She ruled, however, that a large colony of bats perching in the ceiling is a latent (or hidden) defect. But since Stevenson was unaware of the infestation, the court ruled that he had not acted negligently in signing a statement because he was unaware of any insect or rodent infestations, nor unrepaired damage. The Van Geemens’ request was rejected.

The takeaway from this case is that buyers who are concerned about infestations from insects, rodents or flying mammals should include an appropriate warranty in their purchase contracts.

Buyer’s remorse? Who can blame them?

Bob Aaron is a real estate lawyer in Toronto and a contributing columnist for The Star. He can be reached at bob@aaron.ca or on Twitter: @ bobaaron2
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