Small Claims Court OF NOVA SCOTIA

Citation: Lucia v. Armitage, 2024 NSSM 45

Date: 20240409

Docket:  529166

Registry: Halifax

Between:

Palmyra E. Lucia

Claimant

v.

Edith Marie Armitage and Gregory Andrew Armitage

Defendants

 

 

Adjudicator:	Eric K. Slone
Heard:	March 26, 2024, via teleconference
Decision:	April 9, 2024

 

By the Court:

 

[1] The Claimant seeks damages in the amount of approximately $8,000.00 for the Defendants’ (sellers’) alleged failure to disclose a latent defect concerning the sewage system on the purchase and sale of a home in 2023.

 

[2] The home in question is a single-family dwelling in Dartmouth, Nova Scotia. It was likely built in the 1960's. The Defendants had owned it since 1993.

 

[3] The house had originally been served by well and septic, but had been connected to city water and sewer probably in the 1970's.

[4] The home was listed for sale by the Defendants at a price of $419,899.00, and came on the market at the end of June 2023. The Claimant put in an offer for $416,000.00 on July 18, 2023, which was accepted subject to many of the usual conditions, including inspection.

 

[5] One of those conditions was the provision of a Property Disclosure Statement, commonly referred to as a PDS. A number of the questions and answers in the PDS are particularly relevant to the Claimant’s case, in particular these two:

 

a.	In paragraph 2.1, the sellers are asked whether there is an alternative heat source, which they left blank (suggesting “no”).
b.	In paragraph 7.6, the sellers are asked "are you aware of any repairs or upgrades to the sewage disposal system?" To this question they answered “no.”

 

[6] I will return to the PDS later.

 

[7] The Claimant had her inspection performed, but the home inspector was not equipped to inspect the sewage system. She arranged for a separate inspection of the sewage system by company called Eastern Home Sanitary Video Inspections, which as its name suggests sends a video camera down the plumbing to get a view of it from the inside. On July 20, 2023, that company reported to the Claimant that they detected some problems. In an email passing between the respective agents, the Claimant’s agent conveyed the following:

 

The sewer line does need to be replaced. The one problem we have is that there seems to be two separate lines. These lines then come to a Y somewhere in the front yard then go to the street. The line we originally tried to access which is to the right-hand side of the electrical panel was only accessible approximately 7 to 9 feet, this pipe was so filled with grease, we could not pass through.…

 

Our request would be to have the costs involved with the sewer line replacement and the landscaping covered. We are flexible with the landscaping not being as elaborate as it currently is, we know this could be somewhat costly. However, the landscaping was something that attracted my client to this home. My client is open to either option of a price reduction or having the funds held with the lawyer, so you know it will be completed.

 

[8] Because the cost of sewer line repairs was not yet known, the parties extended the inspection condition until the end of July 2023.

 

[9] On July 31, 2023, the plumbing company Mr. Rooter provided estimates totalling approximately $14,000.00 to perform all of the sewer work that they believed necessary (at that time). There was also a landscaping quote from a separate company, because digging up the lawn would require restoration of a significant part of the front yard.

 

[10] The Defendants did not accept this proposal put forward by the Claimant’s agent. The net result was that the original offer lapsed. Almost immediately, the Defendants’ agent put the property back on the MLS system. The Claimant believed they were still negotiating and took exception to the property being put back on the market. However, there does not appear to have been anything illegal or even improper about this. Nevertheless, the Claimant was obviously feeling some additional pressure and she put in a fresh offer to purchase the property at

$405,000.00. The offer was unconditional. The price was $11,000.00 less than she had originally offered, which is understandable given that the sellers were not planning to do any of the work that the Claimant now understood was going to be required.

 

[11] This offer was accepted. There were no longer any conditions concerning inspection or the condition of the sewer.

[12] Although not in the contract, the Defendants were asked to provide statistics concerning their heating costs. They disclosed their propane usage only. They did not disclose the fact that at one time there had been a pellet stove supplying additional heat. The pellet stove had been removed, but there was still a hearth and chimney quite evident in the living room area which would have indicated to any observer that there had once been some form of heating device. According to Mr. Armitage, the pellet stove was not intensively used, and they probably burned no more than $300.00 worth of wood pellets per year. The Claimant believes that the Defendants misrepresented their heating costs, though no damages were claimed based on that alleged misrepresentation.

[13] The main basis for the claim was explained by the Claimant in her testimony. Apparently, after the closing in August 2023, Mr. Rooter was retained to fix the sewer problems that had originally been detected. When the front yard was excavated for this purpose, several things were discovered. One of those things was the discovery that there was an illegal sewage line leading out from the laundry room. Apparently, this was the original line leading to the septic field which beginning at some point long before the Armitages owned the property, had been used only for the draining of the washing machine. According to Mr. Armitage, they never had a backup or blockage of the washing machine line. Evidently it was simply draining into the soil or into the old septic field, which is not legal.

 

[14] The additional cost of capping and replacing that line so that it drains to the city sewer is in the neighbourhood of $8,000.00.

 

[15] The Claimant alleges, without any direct proof, that the Defendants knew that the laundry line was unsustainable or illegal. The Claimant merely has her suspicions, based on what she believes were other misrepresentations in the PDS. She theorizes that the washing machine was moved at some time during the previous 30 years. She says that there were pipes in the basement that were likely replaced sometime during the previous 30 years, since they were of a more modern material. She says that this ought to have been disclosed as repairs or upgrades to the sewage system.

 

[16] Mr. Armitage testified that he had no idea that there was anything untoward about the line into which the washing machine drained. From his point of view, it had always been there for 30 years and he and his wife gave it no thought. Mr. Armitage testified that they did, indeed, replace some old cast-iron pipes in the early 1990s, to bring them up to more current standards, but when he and his wife answered the question about upgrades, they did not consider that this constituted an upgrade that required mention, in part because it was so long ago.

 

[17] The Claimant also points to some apparently old obsolete wiring in a different part of the basement which she believes had been for a previous laundry area. She theorizes that if the laundry area was moved, the Defendants must have known that the wastewater outlet they were moving to was illegal.

[18] Mr. Armitage testified, and I accept, that the laundry room had always been in the same place during his ownership. This evidence was corroborated by two friends and neighbours who were frequently in the Armitage home and would have known if the laundry area had been moved.

 

[19] In addition, the evidence of the obsolete wiring is not consistent with the Claimant’s theory, as the outlet involved is not the higher voltage type that laundry appliances use.

 

[20] The Claimant points to other alleged misrepresentations in the PDS, not on the basis that they have anything to do with the sewage system, but she offers them as some kind of evidence that the Defendants were prone to making misrepresentations. I am dubious of the general proposition that someone who misrepresents one thing can be assumed to have misrepresented other things, but even so I consider the representations to be innocent and not material.

 

[21] For example, the question about supplementary heating speaks to the present condition of the property. At the time the PDS was filled out, there was no pellet stove. Another seller might have mentioned that there had been a pellet stove at one time, but I do not consider it to be a misrepresentation to have remained silent about it. There is no evidence that the Defendants made any contractual representations about their cost of heating. This was simply as a result of inquiries between the agents, and the fact that there had at some earlier time been some pellets burned obviously did not come up. Even so, the amount involved does not seem to me to have been material.

 

[22] The Claimant also made reference to other statements in the PDS, again to cast some doubt on the credibility of the Defendants. She found in the basement a jar of some odour absorber product and suggests that the Defendants should have disclosed that they had a pet odour problem. She also questions whether they were fully forthcoming about the property's ability to withstand water incursion.

[23] There is no basis to find that there was an odour problem or any tendency of the basement to flood.She also pointed to a provision in the listing for the property, which stated that there were audio/video recording devices present on the property. She wondered whether this meant that the Defendants were listening into discussions that may have taken place during her visits to the property, giving some unfair access to her thought processes in negotiating for the purchase. I see no merit whatsoever in this allegation.    Not only was there no evidence that conversations were being monitored, but I am not sure that she even correctly interpreted this language to mean that there was active recording going on. Moreover, she does not allege that anything actually flowed from this and it is simply offered as a further attempt to slur the Defendants.

 

[24] Mr. Armitage testified and appeared sincere and truthful. He testified that they had never had any flooding problems, as the basement was well served by the sump pump system. He admitted that they had changed some cast-iron pipes in about 1993 to switch over to plastic ABS piping, but also mentioned that some of the ABS piping in the basement had been there when he took ownership of the property. He admitted that he had replaced a laundry sink (in the same location) about four years ago but did not think that this was the type of improvement that deserved mention in the PDS.

 

[25] In all, I consider that the PDS was truthful and there is no evidence to suggest that the Defendants misrepresented anything about their property.

 

[26] It is particularly noteworthy that the Claimant had as much knowledge as she did about the sewage system and made an unconditional offer. The discovery that occurred after closing concerned something that was buried deep underground and was about as latent as a latent deficiency could be.

[27] As has been observed in many cases, the PDS is not a guarantee or warranty. It is a modest exception to the rule of caveat emptor, or buyer beware, that would otherwise apply. Misrepresentations made in a PDS must be shown to have been intentional or negligent, and it must be shown that a buyer relied to her detriment on such misrepresentations. The seller cannot be sued on the basis of something that they did not know and had no reasonable way of knowing. I find that the Defendants did not know that there were sewage problems of the type that were eventually discovered, and the Claimant has not succeeded in proving a case based on intentional or negligent misrepresentation, or any other cause of action.

ORDER

 

[28] As such, for all of the above reasons, the claim must be dismissed.

 

Eric K. Slone, Small Claims Court Adjudicator