When is an odour strong enough to warrant a finding of a breach of contract in the sale of a house?
A B.C. lawyer is out of luck in his claim and now must pay court costs after he took issue with the condition of a house he bought in 2011.
As part of the purchase, he included a condition that the seller remove “all scented products including, but not limited to, scented candles, diffusers, incense, perfumes, soaps, and cleaning products,” according to B.C. Provincial Court Justice Vincent Hogan’s ruling. The lawyer’s wife is “extremely sensitive” to odours, Hogan noted.
After entering into the contract to buy the house, a home inspector went through it and didn’t note anything in regards to smell despite later testifying at trial that he thought there was a strong odour, “like some kind of bathroom deodorant,” according to Hogan.
The lawyer, Marvin Geekie, later entered the house himself before the sale closed and wasn’t happy to find three scented glass jars. They weren’t, however, “enough to repudiate the contract,” Hogan ruled.
But the issue resurfaced again when a painter went in to do some work on the interior rooms. While doing his work, he heard a noise in the laundry room. When he went to look, he saw a plastic joint had fallen from under the sink. He later noticed a strong smell coming from the pipe. He used a drop cloth to clean up the spill, and the smell made him dizzy as he drove home with it in the car.
Geekie then hired a contractor to deal with the issue. While doing some work, the contractor noted a dried cloth near the pipes that had a “peculiar perfumy odour.” Geekie told the court of his extensive remediation efforts as a result.
As Hogan noted, in was an unusual case. While pipes rarely fall, disintegrate, and then contaminate a room with a strong odour, there was no evidence as to what caused the incident, he found. The issue, then, was whether the house was in substantially the same condition on the possession date as when the buyer viewed it. When it came to the pipe, he found there was no breach.
“In the sale of a used house it is difficult to see that a collapse of a section of PVC pipe, entirely unanticipated by either of the parties, meant that the house was not in substantially the same condition as when viewed by the claimant,” he wrote.
And on the odour itself, Hogan noted the home inspector had encountered a strong smell when he went through the house before the buyers had taken possession.
“The house had a strong odour when the house was open for inspection, and it had an even stronger odour after the claimant took possession,” he wrote. “However, that means it was still in substantially the same condition. I therefore dismiss the claim.”
Things got even worse for Geekie when Hogan issued his costs decision last week. He ordered him to pay the defendants costs of $1,220.