KELOWNA — A judgment in small claims court highlights the risk of making an unconditional offer when buying a home.
Following a two-day hearing, Judge Clarke Burnett ruled in favour of a woman who sold a West Kelowna home with faulty windows in June 2022, after the couple who purchased the home sought close to $17,000 to replace the windows.
Barry Gunness and Cynthia Parmentier made an offer on the home on June 7, 2022, a day after the couple had viewed the home. Their real estate agent, Roxanne O’Keefe, advised them to get a home inspection, but also said an offer with the condition of a home inspection would likely not be accepted, as there was a competing offer.
“A ‘clean offer,’ meaning an offer with no conditions, would have a better chance of being accepted by a purchaser than an offer with conditions,” Judge Burnett noted in his judgment.
As a result, the couple did not obtain a home inspection and their offer was accepted. They took possession of the home on July 22, 2022.
Soon after, they found the windows in the home appeared foggy due to the seals having failed. They had most of the windows replaced at a cost of $16,947, and sought compensation for the expense from the seller Jaqueline Swedos.
Judge Burnett said the matter came down to the distinction between a “latent” and a “patent” defect. A latent defect in a home is one that is “not discoverable by observation and reasonable inquiry,” while patent defects are “those that can be discovered by conducting a reasonable inspection and making reasonable inquiries about the property.”
A seller who is aware of a latent defect in a home and doesn’t disclose it to the purchaser may be liable for the cost of it. But for a patent defect, the onus falls on the buyer, under the legal doctrine of “caveat emptor,” or “buyer beware.”
“The claimants viewed the residence only on one occasion before they decided to make an offer to purchase it. During the viewing, it was apparent to them that there may be a problem with the windows. They believed that they might have had some ‘film’ on them. The claimants could have chosen to have the windows inspected,” Judge Burnett stated in his judgment.
“The failed window seals, I find, were a defect that would have been easily discoverable through a reasonable inspection. The defendant did nothing to conceal the condition of the windows. All of the windows were readily accessible. Anyone viewing the residence could come to their own conclusions regarding the windows’ condition. As a result, I conclude that the failed window seals were not a latent defect but a patent one.”
Gunness and Parmentier argued that prior to purchase, they had asked their real estate agent to ask the selling real estate agent Derek Leippi about the windows. He responded by text, saying: “Some of the more sun exposed windows have faded … the seals are still good.” Swedos said Leippi never consulted her about the inquiry from the buyers.
But Judge Burnett ruled that the assurance from Leippi was not included in the sales contract, and thus held no weight legally.
“The claimants did not seek to have a representation or warranty that the windows seals were intact written into the Contract and the [Property Disclosure Statement] contains no reference to the condition of the windows,” Judge Burnett said.
“In the absence of anything pertaining to the windows’ condition in the contract, any statements made by the defendant’s realtor regarding the condition of the windows cannot bind her.”
As a result, Gunness and Parmentier’s claim was dismissed.
