Citation: Sniher v. Carefree Home Inspection Services Ltd., 2004 ABPC 242
Date: 20041220
Docket: P0390105028
Registry: Calgary
Between:
**Trent Sniher and **
Sandra Sniher
Plaintiffs
- and -
**Carefree Home Inspection Services Ltd. **
and Allan Kaiser
Defendants
**Reasons for Judgment of the Honourable Judge J. T. McCarthy**
[1] The plaintiff claims against the defendants $12, 750.00 which is the estimated cost required to replace a pine shake roof on a home that they have purchased after retaining the corporate defendant to do a Home Inspection Report. The individual defendant, Allan Kaiser, was the principal of the corporate defendant.
[2] A contract was entered into between the corporate defendant and Mrs. Sniher, on behalf of the plaintiffs, to do a Home Inspection of the premises on which they had made a conditional offer to purchase. The Inspection Contract that was executed by the parties indicated in part as follows:
“I/We are aware that the industry standard clauses contained within the warranty restrict any errors or omissions recovery to the price paid for the inspection as outlined on the Limited Liability Warranty Certificate.”
[3] The Limited Liability Warranty Certificate which was again executed by Mrs. Sniher, on behalf of the plaintiffs, and by Mr. Kaiser, on behalf of the corporate defendant, stated in part as follows:
“CAREFREE HOME INSPECTION SERVICES LTD., assumes no liability or responsibility (other than a refund) for any costs incurred with the purchase or sale of an inspected property due to errors, omissions or potential problem areas contained within the inspection report. The refund is contingent upon the report purchaser providing a paid repair bill from any licensed repair organization within the warranty period as established by “post mark” or repair bill date.”
[4] The information contained in the listing of the property was available to the plaintiffs and their agent with regard to the roof and it stated as follows: “ROOF: SHAKP”. This information was not provided to the defendant. This information is easily recognizable to any real estate salesperson, and through that person to the purchaser that he represents as meaning the roof was made of pine shakes.
[5] The plaintiffs paid $325.00 for the Inspection Report with the corporate defendant. The part of the report that deals with the roof indicates as follows:
“As discussed, the roof is in need of some cedar shake replacement to deal with the affected shakes. The photographs represent a view of various planes of the roof surface. If you are comfortable working on your roof, you could extract the damaged shingles and re-nail the caps for the price of a bundle or two of shakes (heavy grade), some galvanized nails and a tin of roofing tar all for about $50.00 per bundle (5 bundles per 100 sq. ft.) Miscellaneous materials go for about $20.00. I have spoken with a leading supplier of the shakes and they advise unless moss has begun to grow on the blackened shakes, no corrective action is required. They advise the blackening is now considered part of the natural aging process and is no longer treated with a fungicide or algaecide. Should you decide you are more comfortable hiring someone to work on your roof be prepared for labour charges anywhere from $350.00 and up depending on who you call and how busy they are. Remember many contractors would rather sell you a new roof than fix the old.”
[6] As it turned out, the roof was built with pine shakes and not cedar shakes and the plaintiffs have determined that the roof will need replacing, as part of the necessary costs which will be incurred as a result of their purchase of the house in question.
[7] **In my view, the wording of the Inspection Contract and the accompanying warranty is sufficient to preclude the plaintiffs’ action in tort, as well as contract. It has expressly limited the liability of the defendant with regard to errors or omissions or potential problem areas contained within the Inspection Report, and these words are sufficient to exclude any liability for the error that was made i.e. that the roof was made of pine and not cedar. Even if this was not the case, the contract further provides as follows:
“This warranty fee is not refundable under damage resulting from Acts of God, or the negligence of the homeowner or others.”**
[8] The homeowners were negligent, in my view, because they knew or should have known through their agent that there was an inconsistency with regard to the type of roof based on the listing information which they knew or should have known about and the report of the inspector. Furthermore, the liability of the corporate defendant in this case, is limited to a refund of the amount paid for the Inspection Report provided the repair bill from any licensed repair organization is paid and presented within the warranty period.
[9] The warranty period was limited to 180 days. The plaintiffs have failed to provide a repair bill within this time period and therefore, their claim for a refund is not allowed. As a result, the claim against the corporate defendant is dismissed.
[10] The plaintiffs have produced no evidence that an agreement was entered into between themselves and Mr. Kaiser in his personal capacity. Therefore, the claim against Mr Kaiser in his personal capacity is dismissed.
[11] With regard to costs, I am awarding costs in the amount of $600.00 in favour of the defendants. The costs are based on the guidelines provided for costs in this Court.
Heard on the 1st day of December, 2004.
Dated at the City of Calgary, Alberta this 20th day of December, 2004.
J.T. McCarthy
A Judge of the Provincial Court of Alberta