Many of us gladly share our affection, financial resources and living space with furry or scaly pets, but few of us would be pleased to discover uninvited cohabitants such as termites, rats, mice, beetles or bats. At what point do such uninvited residents constitute a pest or rodent infestation, or a material latent defect requiring disclosure upon the sale of the property?
There is some guidance from BC Courts as to what does not constitute an infestation. A gap between the wall and the floor in a laundry closet that allowed mice, spiders, and crickets into the house was found not to constitute a pest infestation in a 2012 Penticton case (Paniccia v. Eckert, 2012 BCSC 1428). In this case, the court found the problem was minor, based on the claimant buyers’ evidence that patching the gap, acquiring two cats, and spraying with over-the-counter insecticide took care of the issue.
There is also guidance from BC Courts in a recent Prince George case (Van Geemen v. Stevenson, 2021 BCPC 234) as to what is not a pest or rodent, namely bats. Buyers of a 43-year-old home on an acreage were shocked to discover bats roosting in the cathedral ceilings of the home. They sued the seller, alleging concealment of what they called a prior bat infestation, or in the alternative, negligent misrepresentation.
The court accepted the seller’s evidence that he had only seen old, dried bat guano on two occasions, once behind the siding of the home and once above the ceiling cedar planks in the cathedral ceiling, some two years prior to the sale. The seller had never seen bats indoors at any point. None of the buyers, their home inspector, or either of the real estate agents had noticed any signs of any pests prior to the buyers taking possession. Upon renovating the home, the buyers discovered guano and a mummified bat corpse above the ceiling cedar planks, which they claimed the seller must have, or should have, known about.
The court found that bats are neither pests nor rodents, but that a sizable bat colony roosting inside a ceiling could be a latent defect requiring disclosure. However, the court found that the seller had no knowledge of such a colony, and honestly believed there were no bats sharing human living space. The buyers’ case was dismissed.
Similar findings were made in an older Ontario case regarding termites (Hoy v. Lozanovski, [1987] O.J. No. 1986 (Ont. Dist. Ct.). The court dismissed the buyer’s claim against the sellers regarding an extensive termite infestation which only became apparent upon removal of carpets. The court found no evidence that the sellers were aware of the issue.
In contrast, in a recent North Vancouver case (Shier v. Tavakoli, June 9, 2021, North Vancouver Small Claims Action No. C-1926460), the court found that the seller must have known of a significant rat infestation, and was dishonest when answering the relevant question in the Property Disclosure Statement. The court awarded damages in breach of contract against the seller on this basis. The court made the unusual decision that the rat infestation was a patent defect because there were several signs throughout the basement of the home that the seller had taken steps to deal with the rat problem. The buyer claimed he was misled by the false answer on the Property Disclosure Statement and by a conversation with the listing agent, and therefore took no further steps to investigate these signs.
The buyer said that when he asked the listing agent about a strong odour in the basement, she answered that the seller had pets. The seller did indeed have a dog. The claim against the listing agent was dismissed as there was no evidence she knew of the rat infestation, and there was no standard of care evidence brought to show that a listing agent had any duty to make additional inquiries or investigations into the state of the home in light of the odour.
A seller’s answers in a Property Disclosure Statement must be truthful, but they are only a starting point for the diligent buyer. Buyers are well advised to follow up on any signs of pests or rodents noticed during a viewing or home inspection. As an agent for either the buyer or the seller, you should be careful to not exceed the scope of your expertise, and to recommend appropriate pest inspection experts if necessary.
