SCCH 339040 

 

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA

Cite as: Mailman v. Amirault, 2011 NSSM 37

 

Between:

 

Lyle Mailman

FIRST CLAIMANTS

 

-         and –

 

Nicole Amirault

SECOND CLAIMANTS

 

-         and –

 

 

Trevor John Bezanson

DEFENDANT

 

 

 

 

Adjudicator:   David T.R. Parker

 

Heard: February 28, 2011 and April 4, 2011

 

Decision: June 3, 2011

 

Counsel:         Kent McNally represented the Claimants

Glenn Jones represented the Defendant

 

 

 

 

 

 

 

 

 

Parker:-This claim arises out of property which was purchased by the Claimants on March 5, 2010. The Claimants purchased the property for the purchase price of $233,942.68 and it involved a newly constructed home on the property.

 

 The Claim:

 

The pleadings of the Claimants outline or enumerate several deficiencies which were noted at the time of closing. The Claimants stated that they made the Defendant aware of these deficiencies prior to and after the closing date. The pleadings also indicate that after the closing date additional problems arose concerning the property and these included the following: stains on the flooring, laminate flooring noise, incomplete front deck, loose treads on the hardwood stairs, paint seeping onto the exterior of the roof, nail or puncture holes in the shingles on the roof and a large rise at the end of the driveway causing the Claimants’ vehicle to strike the rise on entering the driveway.

 

The Claimants stated that they have not released the landscaping holdback nor the builders’ lien holdback to the Defendant, as the necessary work has not been completed. The total of the landscaping holdback is $3,500.00 and the builders’ lien holdback is $26,500.00. The Claimants stated they have caused some of the necessary work to be performed by third-party contractors. More specifically repairers to holes in the roof, the residue which was leaking around the skylight in the bathroom and a large amount of topsoil which was left in the Claimants’ front yard has been moved to the Claimants’ backyard.

 

The Claimants stated that they have obtained quotes with respect to the additional work that is acquired for the property. The Claimants stated that the following work needs to become completed and claims damages for the following:

 

Landscaping, including repairs to the drainage system and the laying of sod

 

Stairs in the property to be repaired

 

The driveway to be repaired

 

The hardwood flooring to be repaired

 

The outside steps for the property to be leveled and reinforced

 

The laminate flooring in the basement to be replaced and

 

Other repairs mentioned in the claim.

 

The Claimants claim for reimbursement in moving topsoil in the front yard to the backyard, repairing the holes in the roof and cleaning the residue that seeped onto the roof and the skylight.

 

 

The Defence:

 

In addition to a general denial and a request that the Claimants provide strict proof of any deficiencies or defects the Defendant stated that the Claimants refused to allow the Defendant to remedy any deficiencies and the Claimants have failed to reasonably mitigate their damages as result of any deficiencies/effects.

 

The Defendant stated that the specific holdback was provided for closing. The parties agreed to a $1500.00 deficiency holdback and a $3500.00 landscaping holdback. The Defendant stated that the Claimants are limited to these two holdback amounts for any deficiencies, defects or incomplete work that was evident at the time of closing.

 

Witnesses:

 

Kathy Bennett

 

Ms. Bennett was brought in by the Claimants to give evidence concerning the staircase in the newly constructed home. She is 22 years experience as a stair builder and she was brought in by the Claimants to do a "job estimate to replace the stairs."

 

She notice a number of defects with respect to the stairs, not being level, parts not fitted properly or correctly, stain not applied correctly, chips and places where the finish was very rough and not sanded. She noted the joints were uneven, nail holes were not touched up, spindles incorrect size, poor materials, scratch lines and not a good finish. She said "time was not taken to have simple little things corrected. She said to do this now at this stage would be very labor intensive. “At this time it would be a lot of work and may not even be possible.” She did say that at the time it would have been reasonably easy to do it right. Her final recommendation was that the stairs should be replaced and she recommended starting from "scratch". It would take too long to fix it. She said she has worked for many construction companies and they would not have accepted these stairs. To replace it would be $6330.49 inclusive of tax.

 

Shawn Brousseau

 

Mr. Brousseau has spent 14 years court dealing with deficiencies for construction companies. He stated that he was asked by the Claimants to look at things in their home. He said it was a beautiful home and he went through a number of the deficiencies which were contained in a deficiency list signed by the parties as shown in exhibit D3 and indicated a lot of them could be corrected very simply. He said he could have fixed 60% of the deficiencies and most of them could have been corrected during the construction.. He indicated that most of these deficiencies could be resolved in a couple of days.

 

Kirk Depchull

 

This witness was a real estate broker who viewed the property  with the Claimants at the point where it was not finished.He said that there were a number things in the house that were not completed and they talked about work that had to be done and a time frame for this to be done. He said that he and the Claimants attributed an amount to have a number of items fixed or completed. He said the Defendant was not happy with the initial amount however an amount was agreed to and everyone signed the deficiency list and a holdback amount and agree that it would be done in a reasonable time. He said the money amount for deficiencies $1500 was arrived at from his experience and everyone's input. He said the Claimants had a home inspector go through the property on March 22 and they prepared a report. He said after the home inspection we did some amendments and it would have been attached to the purchasing agreement.

 

Ross Johnson

Mr. Johnson held himself out to be contractor for 50 years. He said the door in the garage would not close completely and to fixed this would cost $100.00

 

 

Analysis:

 

This case involved a house under construction which the Claimants wished to purchase and move into near the end of full completion. There were a number of items within the house that had to be completed as well as landscaping which had to be completed. The Claimants and the Defendant as well as realtor went through the house and noted a number of these items where there were repairs that had to be done or work that had to be completed on the home. These items were reduced to writing in which all parties signed with the knowledge that they had to be completed or repaired and they agreed on a holdback of $1500.00. As it turned out a rift developed between the parties and these items in large part were never addressed by the Defendant. This case involves these items as well as a large number of defects that the Claimants later observed on the home. In reviewing the evidence of the witnesses for the Claimants, all of the defects were observable and what would be termed as patent defects. They were not latent defects which the Defendant was aware of and concealed from the Claimants. If the Claimants wanted the defects rectified or they wanted changes done with respect the stairs or anything else in the house they had every opportunity to negotiate either the sale price or a holdback to have those items dealt with by the Defendant or if he did not fix the items then another contractor. Unless there is a contractual obligation either in the purchase sale agreement or a collateral contract to that agreement where a seller is obligated to rectify problems beyond the sale of the property or to guarantee or warranty certain items or matters respecting the property then the principal of caveat emptor applies.

 

With respect to the costs involved in rectifying number of the items complained of by the Claimants there is also insufficient evidence as to what that might be with the exception of the stairs which dealt with replacing the staircase in its entirety. There was no evidence to show that these would be the exact same stairs as the ones that were already in the home and there was no evidence to show what it would cost to rectify the problems without replacing the stairs. The only testimony  was that it would be costly and the witness said she did not know if anyone would undertake the job of refinishing the stairs.

 

The Claimants will receive the $1500 holdback to deal with the deficiencies as agreed as well as the $3500.00 holdback for landscaping which was also agreed.

 

 

It Is Therefore Ordered that the Defendant pay the Claimants the following sums

 

$1500.00

$3500.00

$ 179.36 court costs

$5179.36