North Vancouver, 141 E. 21st St.: Leaking decks frequently discussed; Court dismisses claim because purchaser failed to prove vendor knew deck was leaking

Citation:

Lieberman & Balfe v. Lee

Date:

20020312

2002 BCPC 0087

File No:

0112975

 

Registry:

North Vancouver

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

BETWEEN:

AUDREY LIEBERMAN and JOE BALFE

CLAIMANTS

 

AND:

MARIE LEE

DEFENDANT

 

 

 

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE W. J. RODGERS

 

 

 

 

 

 

 

 

Appearing in person:

A. Lieberman

Appearing in person:

M. Lee

Place of Hearing:

North Vancouver, B.C.

Date of Hearing:

January 24, February 27, 2002

Date of Judgment:

March 12, 2002

             

 

 

[1]        This Claim is brought by Ms. Lieberman and Mr. Balfe for an award of damages for the cost to repair a leaking deck in a condominium which was purchased from Ms. Lee.

[2]        The Claim of Ms. Lieberman and Mr. Balfe is based on three allegations: (a) that on the date the property was sold the deck of the condominium was damaged; (b) that Ms. Lee knew of the damage to the deck; (c) alternatively, that Ms. Lee ought to have known the deck was damaged.

[3]        On December 14, 1998 Ms. Lee entered into a written contract with Ms. Lieberman and Mr. Balfe for the sale of her condominium at suite 304 - 141 E. 21st St., North Vancouver, B.C.

[4]        A Property Disclosure Statement was attached to, and forms part of, the contract for the sale of the condominium. At paragraph 26 the following question was posed: "Are you aware of any leakage or unrepaired damage?" Ms. Lee answered this question: "No".

[5]        Ms. Lieberman and Mr. Balfe took possession of suite 304 on the 31st of March 1999. In April or June, Ms. Lieberman noticed that the minutes of the strata council meeting of April 1999 recorded a complaint by another tenant that water was leaking from the Lieberman-Balfe apartment. Ms. Lieberman began to investigate by speaking to the person who complained, Ms. Loverock, who lived in suite 204.

[6]        Ms. Loverock told Ms. Lieberman that she had spoken to Ms. Lee prior to the sale of the condominium about water leaking from the deck of suite 304 onto the deck of Ms. Loverock's apartment, suite 204. Ms. Loverock has recently moved from the Vancouver area so her evidence was introduced by letters from her to Ms. Lieberman. Ms. Loverock wrote of an incident where a bucket of water had been spilled while Ms. Lee's husband was cleaning the deck. This clearly had nothing to do with a deteriorating deck surface. The second incident referred to by Ms. Loverock occurred when water dripped from Ms. Lee's bathroom into the bathroom of Ms. Loverock. This leakage was caused by the shower curtain not being placed inside the tub and had nothing to do with a deteriorating deck.

[7]        Ms. Lieberman received a letter dated August 4, 1999 from the property manager, Ms. Thompson, advising her to correct the problems of the leaking deck in suite 304. Ms. Lieberman wrote to Ms. Lee in October of 1999 about the water leakage. Ms. Lee wrote to Ms. Lieberman stating that she had no knowledge of any leakage problems.

[8]        Ms. Lieberman obtained a number of estimates to repair the deck. The lowest bidder was unable to schedule a time to perform the work and eventually Ms. Lieberman hired Deck Doctor to repair her deck in August 2000 at a cost of $1400.

[9]        Ms. Loverock also complained about damage to her deck carpet caused by water leaking from the deck of suite 304. Ms. Lieberman agreed to pay for the cost of

replacing the carpet. The cost for new carpet installed by Lonsdale Carpet on the deck of suite 204 was $292.35.

[10]      Ms. Loverock wrote that she spoke to Ms. Lee about damage caused by water leaking through Ms. Lee's deck. This is denied by Ms. Lee who testified that the only complaints she received from Ms. Loverock concerned the spilled bucket of water and the leak from her shower. The letters from Ms. Loverock describe these two incidents, which are not related to any damage to the deck of suite 304, but her other complaints are vague and uncertain. I cannot give a great deal of weight to Ms. Loverock's evidence where it conflicts with the evidence of Ms. Lee.

[11]      I further note Ms. Loverock and Ms. Lee were members of the strata council. The minutes of the strata council showed that leaking decks were frequently a topic of discussion. There is no mention in the minutes of a complaint by Ms. Loverock against Ms. Lee. If such a problem existed, I find it likely that Ms. Loverock's complaint would have been noted in the strata council minutes.

[12]      Ms. Lee and her husband testified the deck was in good repair at the time of the sale and there is no evidence which could lead the Court to conclude their testimony was inaccurate or untruthful.

[13]      Ms. Lieberman and Mr. Balfe must first prove, on a balance of probabilities, that, at the time of the sale, the deck of suite 304 was damaged. However, there is no

evidence as to the extent of the damage, if any, to the deck of the suite. No employee of the Deck Doctor testified; not even photographs of the repair work were introduced. The invoice from The Deck Doctor did not explain the scope of the repair or any description of damage.

[14]      Since Ms. Lieberman and Mr. Balfe have failed to prove that the deck of suite 304 was in need of repair at the time of the sale, it follows that they have not proven Ms. Lee knew the deck was damaged and thereby made a false statement in the Property Disclosure Statement.

[15]      Ms. Lieberman and Mr. Balfe submit that Ms. Lee ought to have known of the damaged deck. Even if the deck was damaged, which fact has not been proven, there was no obligation on the part of Ms. Lee to investigate the condition of the deck. The obligation to investigate is upon the purchaser provided that any defect is not knowingly concealed by the seller.

[16]      The Claim for damages to repair the deck of suite 304 is dismissed

[17]      I also find there is no evidence that water leaking from the deck of suite 304 caused damage to the deck covering of suite 204. There is no evidence of the damage to the carpet on the deck of suite 204 beyond the assertions of Ms. Loverock. The invoice from Lonsdale Carpets did not specify the damage; no one from that business testified; there were no photographs entered as exhibits at trial. This part of the Claim is also dismissed.

[18]      The Claim is dismissed and Costs are awarded to Ms. Lee in the amount of $300 to compensate Ms. Lee for Court Registry fees, attending at Court for all appearances and for out-of-pocket expenses such as photocopying. The Award of Costs is payable within 30 days from today's date jointly and severally by Ms. Lieberman and Mr. Balfe. Payment may be made directly to Ms. Lee or through the Clerk of the Court.

 

The Honourable Judge W. J. Rodgers