Take a Video
This makes good sense, but it is a step which is skipped in most cases. The Sellers are so busy packing and moving to their new house that they omit a very basic step and that is to:
CHECK whether the chattels and fixtures are in good working order.
Judge Marr had to consider such a case in Small Claims Court in Goldman v. Lennox a decision released 15 May 2018.
There were two issues: 1) the central vacuum and, 2) the garburator. The Buyer said they didn’t work on closing and the Seller said they did.
What was the deal? The Trial Judge looked at the Agreement of Purchase and Sale:
“Paragraph 4 of the Agreement of Purchase and Sale lists the chattels included in the transaction. It states among other things in the paragraph the following:
… garburator … Broan central vacuum and equipment …
Schedule A of the Agreement includes the following:
The Seller represents and warrants that the chattels and fixtures as included in this Agreement of Purchase and Sale will be in good working order… The Parties agree that this representation and warranty shall survive and not merge on completion of this transaction, but apply only to the state of the property at completion of the transaction.”
At Trial, the Buyer tendered invoices for the repairs associated with both the central vacuum system and the garburator.
At Trial, the Seller simply stated that the Buyer must have broken them during renovations but had no actual knowledge of this alleged fact. The Seller also pointed out that no issues were raised as a result of the home inspection.
Very simply, Judge Marr summed things up as follows:
“With respect to the central vacuum cleaner, I don’t think the Defendants deliberately transferred the house knowing it was not working. However,
I conclude it was not working when the house was transferred.
I reach this conclusion for two reasons.
- Firstly money would not have been spent to repair the Central Vacuum cleaner unless it was not working.
- Further, the testimony of the two Plaintiffs was credible that when possession was transferred the garbuartor and central vacuum cleaner did not work.”
Judgment was entered for the Buyer in the amount of $1,290.46, (concerning both items) which indeed is a relatively small claim.
COMMENT
Neither of the parties had lawyers. Representation would have cost more than the claim.
The Seller’s problem was that basically he had no evidence to offer at all.
What if, immediately before leaving the house, the Seller filmed the items in good working order on a short video? That evidence would have been perfect and would have only taken a couple of minutes.
So, going forward, Sellers should video their chattels in working order and their real estate agents should advise them to do so!
Brian Madigan LL.B., Broker