The sensitive buyer


In 2006, Glenda Halliwell made an offer on a home. She explained to her realtor, Lazarus, that she was sensitive to mould, and that she wanted to ensure that the house she was buying did not have mould. Her realtor recommended a particular home inspector, Edwards. Edwards did the inspection and did not find any mould. However, he did notice some damaged parging outside the house, which he noted in his report. His report also stated clearly that the inspection was visual only, and that there would be no mould inspection. This clause was not specifically brought to Halliwell’s attention. Neither she nor Lazarus reviewed the written report.

Four months after the purchase closed, Halliwell found significant mould in the basement.

When the case went to trial, the judge found that the vendor did not know about the mould, and did not deliberately try to hide any problems with mould, so the vendor was not liable for the cost of repairing the mould problem. Moving to the home inspector, the judge found that he was 50% liable to Halliwell because the limitations on the inspection had not been brought to her attention, and also because he had noticed the parging but had not brought this to her attention. If she had been notified of the potential water issues, she might have walked away from the home.

The remainder of the liability was apportioned equally between Halliwell and Lazarus. Lazarus was found 25% liable, both because he did not properly review the report in order to advise Halliwell, and also because the judge found that, as an experienced realtor, he should have known what damaged parging looked like and advised Halliwell appropriately. Further, and more seriously, the judge found him liable because he knew of Halliwell’s sensitivity to mould and recommended a specific inspector, therefore he was at least partially liable for a problem that inspector missed. Halliwell was found 25% liable herself because, while she was a first-time buyer and could not have been expected to understand all of the problems or see the warning signs, she still had some responsibility to read the inspection report.

When purchasing a home, it is important to be able to rely on the advisors you hire and surround yourself with. Ultimately, however, it is also vital to be aware of what you are buying.

You can read the entire case, Halliwell v. Lazarus, here.

UPDATE (October 4, 2012):

I just learned that, in May, the Ontario Court of Appeal heard this case and found the inspector 100% liable. You can read the court of appeal decision here.