That Stinks! The Problems with Household Odours and Purchasing a Home

You walk into a house that you are going to buy, and the strong aroma of freshly baked cookies fills the air.  As you explore the house, the subtle but tasteful smell of seasonal air fresheners scents the space.  You offer, it’s accepted.  You do your home inspection and the owners have thoughtfully left the windows open to let the fresh seasonal air push through the home.   You take possession, and this is where things get funky.

Unfortunately, the funky is from something nasty hiding in the carpet, the subfloor, the vents or some other location able to absorb massive amounts of smelly substances.  A whole bunch of angry thoughts go through your head about the vendors of the property, as you start moving boxes into your new home. 

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The inspiration for this article came from a unique decision out of British Columbia that I saw circulating on various forms of social media (Geekie v. Wilding and Hasselback, 2014 BCPC 343 (CanLII), http://canlii.ca/t/ggjpl).  The Plaintiff was the buyer of the property with intense scent allergy.  The allergy was such that the Purchaser required as a condition of the deal that all scent based products be removed from the house prior to possession.  The Vendor tried to do so, but missed a few products, which the Plaintiff found and removed from the property a few days from possession.  He was miffed, but did not deem it a substantial enough breach of the deal.

A few days after possession, a PVC pipe mysteriously disintegrates, and a strong smelly substance comes from the opening left by the pipe.  The Vendors deny responsibility, and the Purchasers undergo extensive renovation efforts to fix the pipes and the smell.  The judge denied the claim for breach of contract on basis that home inspector had smelled an odor like that, but never reported it to the Purchasers, and on the basis that a broken PVC pipe was not significant enough to constitute a breach of  contract.

There are a few cases that add to the discussion.  The focus tends to be around the timing of the bad smells, any evidence of knowledge of those smells at the time of purchase, and any contractual warranties that may apply to the transaction.

For example, Hodel v Walkey, 2014 SKPC 56 (CanLII), <http://canlii.ca/t/g6g2j>, where there was extensive fecal matter found in the duct work of a mobile home.  This case is interesting as it was decided on the basis of a warranty provided on the fitness of use of the attached goods.  The court said that the Purchaser couldn’t use the duct work in the state they were delivered, and thus there was a breach of contract.

However, the court went on to say that there was also a breach in the context of this being a latent defect (meaning one hidden from ordinary inspection) because of some knowledge gained by the Vendors about all the problems with animal urine and feces in the property.  In effect the court said by saying nothing, the Vendors essentially hid the problem.   

What if someone is covering up existing odours? The decision in Jacobucci v Prediger, 2012 SKQB 319 (CanLII), http://canlii.ca/t/fshp0assists. In that decision, the court was trying to assess liability for a flooded basement.  The smells from the moldy basement were being masked by the air fresheners being used.  The court used that fact as circumstantial evidence to establish that the Vendors knew there were ongoing problems.  Presumably, similar analysis could apply to a situation where the smell itself was the problem. 

This is in contrast to a situation where the cause of the odors may have existed at the time of sale, but neither party was aware of them.  In Newell v. Ziegemen, 2003 SKPC 159 (CanLII), http://canlii.ca/t/1g6hd where the owners discovered a smell once the furnace was turned on a short while after they took possession.  They discovered that there was extensive cat urine in both the lower and upper floors.  However, neither party identified the problem during the sale process.  No representations were made about the state of the carpets. Despite the regular carpet cleaning that the vendor engaged in every 2-3 years, the court found there not to be a latent defect that needed to be disclosed.

A similar result occurred in Bourdages v Chanathavone, 2011 SKPC 69 (CanLII), <http://canlii.ca/t/fn9j3> where a foul odour was discovered some time after possession.  The court found against the Plaintiff Purchaser because there was no indication of mould problems or smells at the time of purchase by either party, and because the Purchaser could have inspected the space by removing a board and looking in the moldy chute. 

A different type of analysis is necessary in situations where smells are emanating from somewhere else and drifting into your property.  Take, for example, the allegations of California residents where the makers of the popular Sriracha sauce were making their eyes and throat burn during a certain processing season: http://www.sgvtribune.com/government-and-politics/20140528/sriracha-hot-sauce-factory-no-longer-considered-a-public-nuisance-in-irwindale. 

The claim could come from a number of causes of action.  The law in this area is complicated, and outside of the scope of this article.  Strand Theatre LTD v Prince Albert (City), 2011 SKQB 209 (CanLII), <http://canlii.ca/t/flz71> is one recent decision that discusses a fact scenario involving an number possible claims when a neighbouring property was affecting another land owner. 

As always, these types of cases are extremely fact specific.  These summaries are not legal advice, and you should consult your own lawyer before trying to resolve any claims that you may have.