Botched home inspection $113K in damages award
Not long after Edward Kent and Teresa Tomsky purchased their Edmonton home, they noticed a musty smell in the basement.
A foundation crack, which they have been led to believe was minor when purchasing the home, was serious. The foundation was deteriorating because water was coming in through it.
In Kent v. MacDonald, released Aug. 28, Justice Anna Loparco of the Alberta Court of Queen’s Bench awarded Kent and Tomsky $113,000. The court found the home’s sellers - Patrick MacDonald and Rhonda McEachen– and their structural engineer Lance White were 25% and 75% liable respectively. Of the money Loparco assessed in damages, $85,000 was for repairs to the foundation.
“(White’s) inspection was cursory at best and did not meet the standard of care expected of a structural engineer," the ruling stated.
The three were sued for damages by the new homeowners who alleged MacDonald, McEachen and White – a former Edmonton councillor - voided the home sale contract's warranty by misrepresenting the condition of the house.
“Mr. White was hired to investigate a specific structural concern,” she wrote. “The Buyers relied on his expertise to their detriment.”
The case started in May 2010 when MacDonald and McEachen reached a deal to sell their home to Kent and Tomsky.
Horizontal crack in wall
An inspector that Kent and Tomsky hired did notice a half-inch wide horizontal crack in the basement wall of the home. The buyers’ inspector recommended they get further evaluation by a foundation repair expert.
The sellers offered to hire a structural engineer – White - based on the assumption that an engineer could provide an unbiased opinion because the engineer would not have an incentive to obtain further restoration work. White produced a short report saying the home was structurally sound. No mention was made in his report of the crack that had already been discovered.
The buyer’s home inspector could not examine the entire foundation wall because some of it was concealed by drywall. After the buyers pressed White for further information, the engineer told them it was not necessary to remove drywall to do any further inspection. He recommended the slope around the foundation be re-graded over the next few years.
White’s report addressed the buyers’ concerns. The sale closed on June 30, 2010.
But by October, Kent and Tomsky began noticing a musty odour, the presence of mould and discolouration of a basement wall.
A contractor hired to remove drywall found more mould and a crack that spanned three basement walls, eventually forcing the homeowners to replace an entire foundation wall and portions of two more. Further inspection in September of 2011 found mould on all four basement walls and significant concrete spalling where the material breaks down into small pebbles.
The new owners then hired a different engineer, Konstantin Ashkinadze, who visited their home, did some inspection and gave them two options for ways of doing major repairs to the foundation.
Testifying as an expert witness for the plaintiffs, Ashkinadze told the court that the foundation was disintegrating due to severe water damage. He had recommended replacing the foundation.
In defending the lawsuit, White argued there is a difference between providing an opinion on structural integrity and on whether there is water ingress. The engineer also pointed out he was working for the sellers and not the buyers.
But without looking at the portion of the foundation that was behind the drywall, Justice Loparco found the engineer hired by the sellers could not ensure that his conclusions on the structural integrity of the foundation were accurate.
According to CTV News, White agreed at trial his inspection fell short.
“Mr. White conceded the crack was not inconsequential or minor,” Loparco wrote. “After reviewing the photos taken after the drywall was removed, he agrees that the foundation suffered deleterious effects due to water damage. Had he known about the spalling, his recommendation would have been to regrade the property immediately.”
Also at issue was a 2005 home inspection that MacDonald and McEachen had received when they purchased the home in 2006 that outlined issues with the basement’s concrete.
Loparco chastised MacDonald for knowing the report existed, but failing to provide it to the buyers, believing that he didn’t have it and it was irrelevant given subsequent inspections, including White’s.
Any appeals in the case must be made before Sept. 29.
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