A fair ruling or is it just downright batty?

A colony of bats discovered by purchasers inside their home sparked a dispute that ended in a B.C. court with Judge Judith Doulis pronouncing it “an archetypical case of buyer’s remorse.”

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Emmeline and Kevin Van Geemen bought a house in Prince George, B.C. on May 31, 2019. The 2-1/2-acre property included a 43-year-old structure on the banks of the upper Fraser River.

After they moved in, the Van Geemens discovered the bat colony in the cathedral ceiling of the primary bedroom. The new owners had no issue with the bats who lived peacefully outside, but understandably recoiled from sharing their inside space with the flying mammals.

The Van Geemens purchased the house from Eric Stevenson, who had acquired it from a bank in a foreclosure action more than four years previously. The structure was a classic “fixer-upper,” and Stevenson renovated and upgraded the house.

At the time of Stevenson’s purchase, there were two bat houses attached to the house. The property teemed with mosquitoes when spring arrived and bats have a voracious appetite for flying insects.

Stevenson and his partner lived harmoniously with the bats and regarded them as an ecological asset. During the renovations, he discovered and removed some dried bat guano behind cedar planking in the bedroom.

When he decided to sell the property in April 2019, Stevenson signed a property disclosure statement. This form has virtually disappeared from use in Ontario after resulting in so much litigation.

On it, he answered “no” to questions about whether he was aware of any infestation by insects or rodents, or of any material hidden defects in the structure.

Shortly after the Van Geemens moved in, an exterminator alerted the new owners to a bat infestation behind one of the walls in the master bedroom and told them that bats can carry rabies and that their guano is toxic.

The Van Geemens spent more than $33,000 to remediate the bat problem, and then sued Stevenson to recover their expenses.

The claim was based on the legal principle of negligent misrepresentation, which gives rise to what the courts called an owed duty of care. The Van Geemens said that Stevenson failed to disclose the bat colony and failed to take reasonable care in his efforts to evict the bats from inside the house.

After a six-day trial last year, Judge Doulis released her 15,000-word decision. She wrote, “Not everyone views bats as unwanted house guests.” She did, however rule that a sizable bat colony roosting in the ceiling is a latent (or hidden) defect. But since Stevenson did not know about the infestation, the court ruled that he did not act negligently in signing a statement since he was unaware of any insect or rodent infestation, or unrepaired damage. The claim by the Van Geemens was dismissed.

The takeaway from this case is that purchasers who are concerned about infestations of insects, rodents or flying mammals should insert an appropriate warranty in their purchase agreements.

Buyer’s remorse? Who can blame them?

8 COMMENTS

  1. In my opinion—gleaned from the darkest recesses of my twisted mind—Stevenson lied on the PDS. I can say this; it’s just an opinion, and not a statement of fact. No one can prove whether or not someone is “aware” of anything short of witnessing that someone seeing/hearing something with his/her eyes/ears and thence lying about it anyway. The defendant is guilty of innocent misrepresentation at best, negligent misrepresentation secondarily and, fraudulent misrepresentation at worst. I think this judge found it hard to find the defendant guilty of any kind of misrepresentation due to her misplaced subjective comment that “Not everyone views bats as unwanted house guests.” I’ll bet the vast majority does. Easy for her to say without bats infesting ‘her’ bedroom wall. To my mind this judge is just a little batty. I’ll bet she’s actually a NIMBY bat-outta-hell at-arms-length bat-lover regarding this issue. Maybe she’s got a thing for Count Dracula. Just thinking out loud. So sue me already. Hmmm….What could the financial loss be?

    This is Canada, eh! I think we still enjoy some kind of free speech.

    Let this one stand Jim. I’m just voicing an opinion:-)

  2. The new PDS in BC includes bats now. However, there is a question regarding latent defects and the judge did say the bats were a latent defect. I wonder what was checked off on that question? Maybe that would help them win an appeal?

  3. This article goes to show that it depends upon which judge one ends up with in a case like this. Judges are human; thus they are subject to subjective bias when it comes right down to legal decisions of this kind.

    I transacted a purchase for a buyer back in the late 2000’s. The property was located in Peterborough, Ontario, and was listed with another brokerage. The seller had left the premises prior to our first viewing. Upon entry we immediately smelled skunk spray, and an open candle was left burning on the kitchen table. I snuffed it for safety reasons. Then I went in search of the odour. It seemed to be strongest when I opened the clothes-closet door in the rear bedroom which was located over a crawl space. The rest of the house had a full basement. I called the listing salesperson and enquired. “Oh, she says she was sprayed by a skunk last night.” was the answer. “OK.” We arranged for a second viewing a few days later. The odour was still there, but lesser in strength. We conducted two more viewings. The odour was a little less each time. A home inspection revealed little of any consequence re the structural integrity of the building. The inspector was too big to get into the crawl space, so shot photos from without with his camera.

    Within the S.P.I.S. the owner confirmed that there were no issues with rodents etc. My client decided to put in an offer, which was quickly accepted. Upon taking possession it was quickly realized that skunks were living in the crawl space under the rear bedroom. The next-door neighbour confirmed that a pest control outfit had recently been commissioned by the owner to get rid of the skunks. Apparently traps had been removed from the premises prior to our pre-offer viewings. “What should I do?” asked my client. “Sue her.” I responded. “But that will cost thousands for a lawyer.” he responded. “I’ll help; you don’t need a lawyer.” He sued. I helped with the paper work and arguments.

    Long story cut short: I was a witness and a guide for my client, a university professor. He put up a very good argument. We even used the pest control guy’s own photos against the defendant; it showed a hard-to-detect dead skunk stretched out on the crawl space dirt under the bedroom. Everyone had missed it, but we didn’t. The defendant ran up forty hours of chargeable time for her lawyer. Her lawyer tried to make me out as a witness with a suspect memory re how many inspections we completed prior to offering. I hollered loudly at the defense attorney that I was not the one on trial; that his client was as I pointed an accusatory finger at her. The lawyer was quite taken aback. The judge admonished me with: “Now, now, Mr. Martindale.” But my point had been made. My client won his case.

    Similar issue. Different judge.

    • Great story, Brian!

      I wonder if this case will be appealed. We haven’t been made privy to the exact question on te form but if it’s anything like was the problem with the Ontario form, what the seller knew about what happened in the past counts as to how much bat guano was removed by the seller.

      • I neglected to mention within my initial narrative that my client sued because he suffered a financial loss. He had to remediate the bedroom floor, right down to the subfloor which had been thoroughly contaminated over the years from the underside with skunk gunck. Even some of the floor joists needed replacing. (Clarified for those not understanding one must display a financial loss/damages in order to sue successfully)

    • That’s awesome Brian!!🤣👏😂 and I agree with you wen I read some clear cut cases on here and clearly it depends which judge someone gets and which side of the bed they get out on some days too! 🤣🤣. Thanks for sharing your story!😄

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