Leaky condo purchaser wins suit against realtor

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Leaky condo costs realtor $20,000
Judge holds agent to promise of no soggy suite in Port Moody complex
 
Jack Keating
The Province

CREDIT: Jason Payne, The Province
Former MP and journalist Simma Holt won a lawsuit against her real-estate agent for 'negligently misrepresenting' the water-damaged state of a Port Moody condo.

A realtor who sold former Liberal MP Simma Holt a leaky condo after promising she wouldn't has been ordered to pay Holt almost $20,000.

"She really seduced me into buying this," Holt said yesterday. "And I trusted her implicitly. Never trust anybody."

The realtor, Ada Van Leeuwen, was working for Royal LePage when she sold Holt the Port Moody condo in May 1999.

"I find Ada Van Leeuwen negligently misrepresented to Simma Holt the state of the condominium being purchased, and that her interests were properly protected when they were not," wrote B.C. Supreme Court Justice Victor Curtis.

"She told her she would not sell her a leaky condo and that is exactly what happened in circumstances in which Ada Van Leeuwen either knew or ought to have known the condominium had significant water ingress problems."

Curtis noted that Van Leeuwen in her evidence said: "I assured her I would not sell her a leaky condo."

He also noted that Holt was "reasonably relying on the advice of Ada Van Leeuwen, who had encouraged her to do so."

The judge found Van Leeuwen negligent and ordered her to pay Holt $14,527 of the repair assessment Holt did not recover by other means, plus $5,000 in damages.

Mere days after the purchase, Holt was outraged to find that she was liable for close to $30,000 in damages.

"I was furious," Holt said yesterday. "And I went immediately to a lawyer because this had been foisted on me. And she knew that the place was rotten.

"I took possession and moved in two days later. Six days after I moved in, I had an assessment for $29,000 for a leaky condo. It was rotten. And I didn't know it.

"I mean, it was downright fraud as far as I was concerned.

"I mean, six days and I'm responsible for a leaky condo."

Holt, who had a witness to the realtor's assurances, said the matter dragged on for years. It finally went to trial last month and the written decision was handed down last week.

"They stalled for eight years," said Holt. "I think they were trying to get me to die before [this went to court]. I'm 84.

"I suppose it sets a precedent. Certainly, I saw it to the end. They wanted to settle for just costs. They wanted to give me $1, which offended me so much that I said I'm going to court even if I have to spend the last cent.

"But I was taken. I was then 77 years old.

"I'd lost half of my life savings. I lost my career [as a writer] for eight years. I wanted to finish my writing. That's why I bought the place. All I wanted was a place to write. I had about eight books on my computer I wanted to finish."

The Condo Homeowners Association was pleased by the decision.

"It's an indication that real-estate agents are accountable," said executive director Tony Gioventu.

He advised buyers to get agreements on transactions and purchases in writing to "make sure that you can actually verify the information you've got."

"It's positive news for consumers that you can hold the parties to account," said Gioventu. "To do that, you're going to need to have some witnesses and evidentiary material, though. Get it in writing."

Holt, the Vancouver-Kingsway MP from 1974 to 1979 and a former Vancouver Sun reporter, moved out of the Maude Road condo in June 2004 and now lives in downtown Vancouver.

Van Leeuwen could not be reached for comment last night.

jkeating@png.canwest.com

© The Vancouver Province 2006




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Simma Holt wins leaky condo case against realtor Ada Van Leeuwen

IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: Holt v. Thompson et al
2006 BCSC 1059
Date: 20060706
Docket: S000964
Registry: Vancouver
Between:
Simma Holt
Plaintiff
And:
Sonja D. Thompson aka Sonja D. Fletcher, Coronation Real Estate Services
Ltd. dba Royal LePage Coronation West Realty and Ada Van Leeuwen
Defendants
And:
David Crawford and 541012 B.C. Ltd. dba Re/Max Sabre Realty Group
Third Party
Before: The Honourable Mr. Justice Curtis
Reasons for Judgment
Counsel for the Plaintiff Aseem P.S. Dosanjh
Counsel for Ada Van Leeuwen William E. Knutson, Q.C.
Date and Place of Trial: June 7-9, 2006
Vancouver, B.C.
Holt v. Thompson et al Page 2


[1] Simma Holt has sued her realtor Ada Van Leeuwen for damages for selling
her a leaky condo. Ms. Van Leeuwen is the only defendant against which the action
proceeded to trial.

[2] Simma Holt met Ada Van Leeuwen at a real estate kiosk in the Lougheed
Mall about October or November 1998.

[3] In the fall of 1998, Simma Holt was 76 years of age. She had sold her
townhouse in Arbutus Village in 1990 or 1991, invested the proceeds and was
renting a condominium but thinking of buying one of her own. Ms. Holt is a graduate
of the University of Manitoba. She worked as a journalist for the Vancouver Sun
from 1944 to 1974, served as a member of Parliament from 1974 to 1979 and has
written four published books, the last being published in 1981. At the time she was
(and still is) continuing with her career as a writer and wanted a small conveniently
located condominium from which she would travel and pursue her writing. She had
an income of about $60,000 a year.

[4] Ada Van Leeuwen, in the fall of 1998, was a realtor working for Royal
LePage. She had worked for Sears for 25 years, taken her real estate sales course
in 1992, and her agent’s course in 1994 at UBC, and had worked since that time in
real estate sales, mostly residential. She said she liked to limit herself to 20 to 25
clients a year.

[5] When Ms. Van Leeuwen saw Ms. Holt looking at the advertising at the kiosk,
she introduced herself and asked if she could be of help. Ms. Holt told her she had
been thinking about buying a condo but was in no rush. Ms. Van Leeuwen phoned
Holt v. Thompson et al Page 3
Ms. Holt a week later and they met at McDonald’s restaurant where she gave Ms.
Holt a set of real estate listings and told her if she wanted to see any to call. They
talked on the phone and arrangements were made to view some properties. Ms.
Van Leeuwen took Ms. Holt out to Coquitlam and Maple Ridge to look at some of the
possible areas.

[6] Ada Van Leeuwen said Simma Holt told her she had heard of problems with
some of the condos and in her evidence, Ms. Van Leeuwen said, “I assured her I
would not sell her a leaky condo.” She said she took Ms. Holt to look at some of the
problem condos which were covered with tarps. Simma Holt told her she could
afford to pay $80,000 to $100,000 or maybe $110,000.

[7] Subsequently, Ada Van Leeuwen took Simma Holt to look at condominiums
in New Port Village in Port Moody. Simma Holt loved the location and made an offer
of $109,000 on a condominium that was listed for $120,000, however, that offer was
rejected. Ada Van Leeuwen testified that Ms. Holt inquired about the Heritage
Grand condominiums across the street from New Port Village and she told her, “I
have heard rumours there is a problem”, but Ms. Holt insisted on looking at them.

[8] Ms. Van Leeuwen testified she called the property management for the
Heritage Grand and was advised that there were problems with buildings 4 and 5,
but that the New Home Warranty program and Richardsons, the builders, were
taking care of it. Ada Van Leeuwen arranged to show Simma Holt condominiums in
building number 3 of the Heritage Grand, and Simma liked unit 420 which she
eventually bought and is the subject of the present law suit.
Holt v. Thompson et al Page 4

[9] The list price on unit 420 was $114,000. An offer of $106,500 was presented
and $110,000 agreed upon, as evidenced by a written contract of sale and
purchased dated February 17, 1999.

[10] Schedule A to the accepted offer reads:
Seller to provide to the Buyer within 48 hours of acceptance of this
offer the by-laws, financial statements, minutes of the past two years’
Annual General Meetings, minutes of any Extraordinary General
Meetings held during the past two years, Strata Council Meeting
Minutes for the past two years, and any Engineering Reports relating
to the Strata complex.
Subject to the Buyer reading and approving the abovementioned
documents provided by the Seller, on or before Feb 22, 1999.
This condition is for the benefit of the Buyer.
The Seller warrants that the Seller is not aware of any circumstances
that could lead to special assessments being approved for remedial
work in the Strata Complex.
ALL OTHER TERMS AND CONDITIONS CONTAINED IN THE SAID
AGREEMENT REMAIN THE SAME AND IN FULL FORCE AND
EFFECT.

[11] The seller’s disclosure statement included the following:
21. Are you aware of any structural problems with any
of the buildings on the property? YES
26. Are you aware of any leakage or unrepaired damage? YES

[12] Ada Van Leeuwen put question marks beside these two answers. She
contacted the seller’s realtor and was advised that the questions were answered yes
because buildings 4 and 5 were on the property and had such problems. She told
Simma Holt that the disclosure statement applied to the whole property and because
Holt v. Thompson et al Page 5
buildings 4 and 5 were having problems the questions had been answered yes but
the problems were being taken care of.

[13] Several days later, Ada Van Leeuwen received a large binder of the minutes
of the Strata Corporation. She testified she telephoned Simma Holt who told her she
was very busy. Ms. Van Leeuwen testified it was not her usual practice to read the
strata minutes, but to leave that to the purchaser. In this case, she told Simma Holt
she would read the minutes and put yellow stickies on the important parts. Ada Van
Leeuwen said she read the whole of the minutes which took her four or five hours.

[14] When she took the minutes to Simma Holt marked with yellow stickies and
urged her to read them, Simma said, “I am very busy” and she told her there were
important things she had to read. Ms. Van Leeuwen agreed Simma Holt told her, “I
rely on you” to which she replied, “Yes you can do that but you have to read, you are
the one making the decision.”

[15] Ms. Van Leeuwen testified, “When I brought over the minutes I told Simma
buildings 1, 2 and 3 were under investigation but the property manager told me if a
problem was found as in 4 and 5, water ingress or structural damage, both would be
taken care of by Home Warranty and Richardsons (the builder).

[16] Ms. Van Leeuwen agreed that she was acting as Simma Holt’s agent
throughout the transaction and was responsible to protect her interests. She agreed
she told Simma Holt she would do her very best to find her the right property. She
also agreed that while it was not her usual practice to read the minutes, “… in this
Holt v. Thompson et al Page 6
case I knew it was very important.” She said, “I told her I would do anything to
protect her or find the right place.”

[17] Simma Holt agreed that Ada Van Leeuwen urged her to read the minutes and
that she did read them. She said all she noticed were problems between people.
She said Ada Van Leeuwen kept telling her everything was okay. She didn’t recall
parts of the minutes being flagged for her.

[18] What the minutes of the Strata Corporation reveal is significant. In particular,
the following is found:
Report on Water Ingress Problems at LMS 2188.
301 Maude Road Port Moody
Buildings four and five appear to have more severe water ingress than
buildings one, two and three, but all five buildings have some degree of
water ingress problems. The problem of too thin stucco prevails on all
buildings in the complex.
(Aqua-Thermal
Consultants Ltd.
June 17, 1997.)
Strata Corporation LMS
2188 Annual General Meeting
February 1, 1999
-an owner asked about the status of the report being done by
the engineering firm. The firm has completed approximately 80% of
the work, but have been held back by the weather. They wish to have
access to a few of the top floor units on buildings 1, 2 or 3 and the
manager is arranging for this. Their report should be completed shortly
after this inspection. The manager also advised that New Home
Warranty indicated that they have set a deadline for the insurance
adjusters for Richardsons (February 28/99) and they have indicated
that they would be prepared to commence work shortly thereafter.

[19] When cross-examined about what she thought when she read the June 17,
1997 Aqua-Thermal report, Ada Van Leeuwen agreed the issue was not whether
Holt v. Thompson et al Page 7
building number 3 had a problem but what the extent of that problem was. She said,
“Yes of course but it would be repaired at no cost to the owners” and that is what
she told Simma Holt.

[20] On the 22nd of February 1999, Simma Holt signed a removal of subject clause
agreement. On the advice of Ada Van Leeuwen, a holdback of $10,000 was added
to the agreement. The holdback agreement provides in part as follows:
The Buyer acknowledges being advised that certain deficiencies may
need to be repaired for the strata complex which may result in the
approval of a special assessment or assessments as the contingency
fund may not be adequate to pay the total cost or it may be decided
not to deplete the contingency fund for such deficiencies. The Seller
agrees that the Buyer’s Solicitor, shall retain in trust the sum of
$10,000 (the “Holdback”). The Holdback shall be retained by the
Buyer’s solicitor as stakeholder, to off-set any special assessments to
repair the Work (as defined below), that are passed from the date
hereof to 12 months from the date of completion of this purchase and
sale (the “Holdback Period”).

OPTION 1:
The Holdback shall be applied to any work (the “Work”) in respect of
which a special assessment is passed during the Holdback Period,
regardless or whether or not the deficiencies have been currently
identified.

OPTION 2:
THE HOLD BACK SHALL BE APPLIED ONLY TO THE FOLLOWING
ITEMS

1. WATER INGRESSION

OPTION 3:
THE WORK – DEFINITION
THE WORK IS DEFINED AS THE WORK THAT IS DIRECTLY
RELATED TO THE POSSIBLE WATER INGRESSION PROBLEMS
ONLY.

[21] Ada Van Leeuwen testified that she added the holdback as extra protection
for Simma Holt. She originally suggested $20,000 but the seller would not agree to
Holt v. Thompson et al Page 8
that and $10,000 was settled upon. Simma Holt testified that as far as she knew the
holdback was simply extra protection but she relied on Ms. Van Leeuwen to advise
her how to proceed.

[22] Simma Holt used a notary recommended by Ada Van Leeuwen to do the
conveyance. The notary obtained a Certificate of Strata Corporation dated April 27,
1999. That Certificate included the following:
g) The expenses of the Strata Corporation for the current fiscal
year are expected to exceed the expenses budgeted for the
fiscal year. A special assessment may be pending.

[23] Patricia Mclean, the property manager for the Heritage Grand testified that
she phoned the notary’s office to ask her if Ms. Holt was aware of a potential special
assessment. The Notice however refers to budgeted expenses not repair costs.
The notary did not testify. By the 27th of April 1999, Simma Holt was already legally
bound to complete the purchase.

[24] The closing date was May 1st, 1999. Simma Holt moved in May 3rd and
immediately left for a trip planned earlier. When she returned from her travels on
May 11th, she found under her door a Notice of an Extraordinary Meeting of the
Strata Corporation disclosing a proposed special assessment for water damage. In
the end, she paid special assessments of $31,280.08 and $9,384.02. An action
against the municipality recovered $16,136.14 for her with the result that she was
out of pocket $24,527.96. After the $10,000 holdback is applied, her loss was
$14,527.96. In addition, of course, there was the disruption caused by the repair
work which started in May 2000.
Holt v. Thompson et al Page 9

[25] On top of the financial and construction problems, Simma Holt testified she
had severe problems caused by the damp and mould in her unit. She said she never
really unpacked and lived in about 150 square feet of her condo. She encountered
coughing, breathing and eye problems that were so bad she often had to leave at
three or four in the morning and stay with friends or go to her property in
Washington. She tried working with a mask and could not. For a period of time she
rented an office downtown near the Burrard bridge which cost her $514.93 per
month. She also was short of money from paying the special assessment and fell
behind in her payments to Revenue Canada resulting in assessments and penalties
she estimated to be $17,000. She sold the condominium in 2004 for $180,000. She
summed up her experience as “I feel my life and my career were taken from me,
perhaps a death sentence, terrible cough, from the mould.”

[26] New Home Warranty went bankrupt in or about March 1999 and the builder
similarly failed such that no funds or assistance was available from either source.

[27] Ada Van Leeuwen testified she acted reasonably in not warning Simma Holt
not to complete because it was reasonable at the time to believe the New Home
Warranty program would cover the potential problems, although she agreed she was
not familiar with the terms of the New Home Warranty coverage.

[28] The position of Simma Holt is that she relied on Ada Van Leeuwen as her
realtor to protect her interest. Ada Van Leeuwen had told her she would not sell her
a leaky condo and that she was properly protected. The position of Ada Van
Leeuwen is that she had informed Simma Holt of the issues, took reasonable steps
Holt v. Thompson et al Page 10
to protect her interest and Simma Holt knowingly took the risk of buying the
condominium.

[29] I find Ada Van Leeuwen failed in her duty to her client Simma Holt. She told
her she would not sell her a leaky condo and that is exactly what happened in
circumstances in which Ada Van Leeuwen either knew or ought to have known the
condominium had significant water ingress problems. Ada Van Leeuwen was well
aware of Simma Holt’s desire to rely on her judgement in the matter. I find it unlikely
that Ada Van Leeuwen fully discussed the specific concerns raised in the minutes
with Simma Holt. I am satisfied that if Simma Holt had properly appreciated those
issues, she would not have proceeded with the purchase. Having told Simma Holt
she would not sell her a leaky condo and would protect her interest, Ada Van
Leeuwen had a duty to make the specifics of the risk Simma Holt was undertaking
very clear to her, not just to urge her to read the minutes when she knew Simma
was very busy and not inclined to. Furthermore, Ada Van Leeuwen had decided that
it was safe to rely on the New Home Warranty program, yet she was unfamiliar with
its terms and did not fully explain the nature of this reliance or its risks to Simma
Holt. Ada Van Leeuwen told her the property manager had said that if the problems
were water ingress or structural damages, they would be taken care of by the builder
and New Home Warranty without discussing how reliable such representations
might be. I find Ada Van Leeuwen negligently misrepresented to Simma Holt the
state of the condominium being purchased, and that her interests were properly
protected when they were not. I also find that Simma Holt was reasonably relying on
the advice of Ada Van Leeuwen who had encouraged her to do so. I find Ada Van
Holt v. Thompson et al Page 11
Leeuwen liable for the damages caused to Simma Holt by her negligent
misrepresentation.

[30] I do not find the claims for renting the downtown office space to have been
proven to be caused by the defendant’s negligence. Simma Holt testified she chose
the location because she wanted to be near the library and needed a convenient
location to do interviews. Nor do I find the claim for tax penalties and interest
recoverable – there is no evidence why Simma Holt did not use some of her savings
to pay her taxes.

[31] The construction which started around May 2000 obviously caused significant
inconvenience. There is no medical evidence that Simma Holt’s health problems
were caused by the wet conditions and mould in her unit, in the absence of which I
am not persuaded that element of her claim has been proven. Simma Holt is
entitled to damages for inconvenience and difficulties caused by having purchased a
leaky condominium. I assess Simma Holt’s claim for general damages for
inconvenience and the disruption to her life proven to have been caused by the
purchase of a condominium she would not have purchased if properly informed at
$5,000.

[32] I find Ada Van Leeuwen liable to Simma Holt for the balance of the special
assessments not recovered, namely, $14,527.96 plus general damages in the
amount of $5,000.
Holt v. Thompson et al Page 12

[33] The parties may address the issues of costs.
“V. R. Curtis J.”