Judge rules against Sudbury couple facing $400K home repair bill

A judge has ruled against a Sudbury couple who sued the former owners of their house when major problems emerged with the foundation. (File photo)

A judge has ruled against a Sudbury couple who sued the former owners of their house when major problems emerged with the foundation.

The couple sued for $400,000, the current cost of repairing the damage. But the judge in the case ruled that, even if the lawsuit had been successful, they would only be entitled to $104,000, the estimate for how much repairs would have cost if they were made as soon as problems were discovered.

Problems began not long after the woman purchased the home in July 2014, which she shared with her husband.

“A few months later a water leak developed in the downstairs bathroom,” said a court transcript of the lawsuit.

“In the course of addressing that leak, (the woman’s husband) discovered not insignificant moisture in the cement blocks of the basement. Over time, that moisture caused failure of the mortar in some locations, weakened the cement blocks and compromised the structural integrity of the foundation. The plaintiffs say that the cost to remediate the water and foundation damage is over $400,000.”

The man who sold the home testified that he had no knowledge of any problems with the foundation. He purchased the three-bedroom home in 2001 with his now ex-wife.

There was a water leak from a refrigerator in 2007 that required repairs, but the former owner testified “that the concrete foundation blocks were visible when those repairs were done but that there was nothing to indicate water infiltration other than from the refrigerator issue.”

A leak from an upstairs bathroom in 2010 caused $11,000 in damage and was repaired. He put the property up for sale in 2014, when the couple purchased it for $239,000.

“The agreement was conditional on, among other things, a satisfactory home inspection being conducted,” the court transcript said.

The woman’s husband is a mason “with a good deal of experience in construction,” the court documents said.

“He determined that he would undertake the inspection on his own.”

The sale was completed but problems emerged two months after they moved in when a pipe burst in the downstairs bathroom.

As the woman’s husband began repairs by removing drywall, he discovered the extent of the problems.

“He started by taking off the bottom two feet of drywall where it was wet and discovered that some of the subfloor appeared black and rotted,” the transcript said.

“The more he looked, the more rotted flooring he discovered. As he removed flooring and got closer to the exterior walls, he discovered dampness in the cement block foundation.”

A home inspector took a look at the property in December and declared the foundation was in jeopardy.

“His opinion was that a combination of the lack of exterior foundation seal, weak mortar and water penetration was leading to the deterioration of the foundation,” the court documents said.

“He said that although the foundation had not yet begun to settle or bow, it would be expected to do so unless remediated.”

In July 2015, the city ordered them to make repairs to the foundation to bring the home up to Ontario’s building code.

The couple then sued the man who sold them the house, arguing he had failed to disclose problems with the foundation.

In adjudicating the case, the judge said he had sympathy for the couple, but there was no evidence the seller had done anything improper.

“They strike me as basically decent, honest, hard-working people,” the judge said in the transcript of the case.

“They certainly did not expect to find themselves in a home with significant structural issues and there is no doubt they will sustain a significant loss. However, the issue at this stage of the proceedings is not one of sympathy or loss. It is liability.”

In this case, the judge said the seller of the home had no liability for the damages and the couple was not entitled to compensation.

But even if he were to side with the plaintiffs, the judge said he wouldn’t have awarded them $400,000, because that was not the cost to repair the damage at the time it was discovered.

“If an injured party can prevent a loss or make it less serious by taking reasonable steps, he or she is required to take them,” the judge wrote.

“The plaintiffs were successful in receiving some $75,000 from their home insurance and title insurance companies not long after the issues were discovered and therefore had the means to conduct the repairs. In my view, it was not reasonable for them to undertake no remedial action and allow the further deterioration of the property.”

REPAIR BILL ESTABLISHED IN 2020

The issue in this case is that the couple was aware of the problems since 2014 and they have gotten more severe. The $400,000 repair bill was established in 2020, six years later.

“The reason this presents a difficulty is because there was significant deterioration in the interim,” the judge wrote.

“In 2014 there was no bowing of the foundation walls or settling of the cement blocks and no evidence that the blocks contained debris that would render them unsuitable for other repair.”

A much cheaper repair – core-filling – was an option in 2014, but no longer. That would have cost $42,000, with repairs to the interior estimated at $50,000.

“On this evidence, the remediation costs, had they been undertaken when the issues were discovered, would be less than $100,000,” the judge wrote.

The couple also claimed $99,000 for loss of rental income from the basement. But the judge ruled that amount would have been much less if they had taken steps to repair the foundation as soon as they learned of the problem.

He knocked that claim down to $12,000, for a total damage calculation of $104,000 had there been a finding of liability. However, the couple will not receive anything because the claim was dismissed by the judge.