Mold question

[Bill Wieczorek]

I was asked to do an inspection in a home filled with mold, this requires a non-disclosure be signed for the bank, has anyone heard of this before? Now just how concerned should I be if I did the inspection. Is a respirator required or will a mask work. I've not been been in a mold filled home (buyers description) before. I'd like your thoughts. How dangerous is this ?

Similar Threads:

• Mold and/or Radon testing..
• Is this mold?
• Lying Seller Found Liable for Hiding Mold
• Mold Must Go: 6 Things to Know - Realty Times

[Jerry McCarthy]

FWIW; I would not take that inspection.

[Garry Blankenship]

If you do not have any credentialing associated w/ mold, WDOs, bio-remediation or ?, I would recommend backing away. If you do it, call it mold like substance & note moisture evidence. My 2 cents.

[Bill Wieczorek]

I am not doing the mold inspection, there is a remediation guy coming out when/if I do the inspection. My concern was just entering the home and doing my normal inspection.

[Scott Patterson]

I am not doing the mold inspection, there is a remediation guy coming out when/if I do the inspection. My concern was just entering the home and doing my normal inspection.

P100 (Pink color) filters are what you need. This is the only one I use on my respirator. They take care of just about everything. I wear a full face type respirator on most jobs that I need to wear one.

[John Dirks Jr]

I've been in some really moldy environments and it's never bothered me personally.

I think the main thing to be concerned about is being blamed for spreading it from one part of the house to another and making the "issue" worse.

I'm confused why they need a mold inspector if they already know the house has mold. What's the difference? Mold is mold. Who gives a crap what kind of mold it is? Just fix the problem.

That's what I'd tell 'em. That usually makes them disinterested in me which is fine by me.

[Ken Rowe]

I've done them before. Not that big of deal. Just wear a respirator as Scott said.

[Kristi Silber]

What's the non-disclosure part about?

[Alton Darty]

What's the non-disclosure part about?

Probably just the bank or mortgage company does not want any pictures or description of the property showing up on a site such as this one.
I have been asked for non disclosure agreements on a couple of commercial jobs that I have done.

[Garry Sorrells]

Bill,
What is the wording of the non-disclosure be signed for the bank?

Did the buyer have to sign a non-disclosure to view property?

[neal lewis]

If you do not have any credentialing associated w/ mold, WDOs, bio-remediation or ?, I would recommend backing away. If you do it, call it mold like substance & note moisture evidence. My 2 cents.

If I see black stuff growing all over sheetrock, I can't just call it mold??

[Scott Patterson]

I was asked to do an inspection in a home filled with mold, this requires a non-disclosure be signed for the bank, has anyone heard of this before? Now just how concerned should I be if I did the inspection. Is a respirator required or will a mask work. I've not been been in a mold filled home (buyers description) before. I'd like your thoughts. How dangerous is this ?

The non-disclosure is not a big deal, heck you are already under such a requirement anyway as you are in a licensed state. The state of IL has already taken care of this for you.

Wear a respirator if it is that bad or if mould bothers you. It bothers the heck out of me, I'm better than any dang mold test. Within a few minutes I have a scratchy throat and watering eyes.

[Garry Blankenship]

If I see black stuff growing all over sheetrock, I can't just call it mold??

I'm no mold authority, but there is liability associated w/ specifically indentifying "it". Regardless of the intitial reason, when a property purchase ends up in litigation lawyers will first search the pockets in the food chain, ( Realtors, inspectors, sellers, etc ), for their depth. Next they go about proving your participation faulty / incorrect / unprofessional. If you identify mold, a lawyer will ask what credentials you have that allows you that diagnosis. If it is later proven to be fungus, stain, a mfg. flaw or whatever else, it potentially becomes pay day for the plaintiff on you. Mold like substance or appearence or possible organic growth is hard to pick apart and your client's interests are still served.

[Ken Rowe]

If I see black stuff growing all over sheetrock, I can't just call it mold??

Depends. Here in Minnesota the Department of Health says if you see it or smell it there's no reason to test. You have a problem. Mold in Homes - EH: Minnesota Department of Health

So if I see it or smell it, I call it mold. Check with your health department in your state.

[Bill Wieczorek]

I mis-spoke when I said non-disclosure. Its released the mortgage holder wants anyone that enters the home to sign, I suppose that's so you can't hold them responsible if you get a lung disease.

I'm not the one that said there's mold in the home, that was the potential buyer, I have no idea what's in the home. Frankly with the issues he mentioned I asked why he wants to buy it, he said its all he can afford. I suggested the remediation may cost more then the home. I guess time will tell.

[Kristi Silber]

(Garry Blankenship) If you identify mold, a lawyer will ask what credentials you have that allows you that diagnosis. If it is later proven to be fungus, stain, a mfg. flaw or whatever else, it potentially becomes pay day for the plaintiff on you.

Mold is a fungus (or rather, molds are fungi). And I bet with enough experience most people can ID your ordinary everyday black mold (and other molds, too) by look, smell and location.

(John Dirks, Jr.) I think the main thing to be concerned about is being blamed for spreading it from one part of the house to another and making the "issue" worse.

Mold spores are already floating through the house. They are in small concentrations everywhere anyway, and if there's already a problem in one part it's very unlikely you'd be bringing anything new into any part of it.

[Bill Wieczorek]

Appreciate all the comments. The buyer wised up and backed out of the deal, I won't have to be concerned about the mold situation. Its been interesting to have your input.

Thank you

[Garry Sorrells]

Bill,
Thought it probably was a release of liability rather than disclosure.
Could not think of way the bank could exercise a nondisclosure on you.

[Ken Harbeck]

I'm no mold authority, but there is liability associated w/ specifically indentifying "it". Regardless of the intitial reason, when a property purchase ends up in litigation lawyers will first search the pockets in the food chain, ( Realtors, inspectors, sellers, etc ), for their depth. Next they go about proving your participation faulty / incorrect / unprofessional. If you identify mold, a lawyer will ask what credentials you have that allows you that diagnosis. If it is later proven to be fungus, stain, a mfg. flaw or whatever else, it potentially becomes pay day for the plaintiff on you. Mold like substance or appearence or possible organic growth is hard to pick apart and your client's interests are still served.

Yes, unless you are mould qualified, “Evidence of potential mould…� would be the appropriate wording in my opinion.

[Bill Wieczorek]

Or How about saying " a mold like substance"

[Ken Amelin]

If I think it is mold, that's what I say - "I think it is mold" or "in my opinion it appears to be mold." You should get it tested. (I don't test for mold)

There is no licensing or certification requirements in my state for mold testing, mold remediation or other.

I would only refer to it as "mold like" is there were some licensing requirement or legal restrictions. I see no liability in stating your observations and opinions, especially if there are no laws that restrict you.

Why is everyone so skittery??? What's the issue??? You should say exactly
what you see and what you think. That's what people pay us for.

[neal lewis]

If I think it is mold, that's what I say - "I think it is mold" or "in my opinion it appears to be mold." You should get it tested. (I don't test for mold)

Ken, why test it? I just go with what the EPA says.

[Ken Harbeck]

Why is everyone so skittery??? What's the issue???

Why? Claims and lawsuits of course. If I’m not qualified to decided what something is, i.e. I’m not mould trained and (where required) licensed, and I give guidance to someone, e.g. “that’s mould�, and as a result they incur financial harm, e.g. unneeded remedial cost, loss of a sale, opportunity cost, etc; I’m potentially liable.

What we ‘think’ something is, is not good enough. We have to be qualified enough (and be able to prove that qualification) to state what something is or isn’t. Or else not offer a judgment at all beyond, “Evidence of potential mould observed; recommend further sampling and evaluation by a qualified mould professional to insure no hazards exist and/or appropriate mould remediation steps be taken where needed.�

[Scott Patterson]

Why? Claims and lawsuits of course. If I’m not qualified to decided what something is, i.e. I’m not mould trained and (where required) licensed, and I give guidance to someone, e.g. “that’s mould”, and as a result they incur financial harm, e.g. unneeded remedial cost, loss of a sale, opportunity cost, etc; I’m potentially liable.

What we ‘think’ something is, is not good enough. We have to be qualified enough (and be able to prove that qualification) to state what something is or isn’t. Or else not offer a judgment at all beyond, “Evidence of potential mould observed; recommend further sampling and evaluation by a qualified mould professional to insure no hazards exist and/or appropriate mould remediation steps be taken where needed.”

Ken, lawsuits like you are talking about seldom if ever happen. Can you cite a single case where an inspector got into trouble for calling out mould when no mould was present? I do not know of any in the States, maybe in Canada? You hear folks talking about them but nobody can ever cite a case.

It is folklore for the most that has been perpetuated by home inspectors, training schools, mould testers and laboratories.

If a home inspector can not tell the difference between soot or other markings on a wall or whatever from mould then they really do not need to be inspecting. Don't be scared to report what you see or find, it can only help you and your clients. Reporting mould or any environmental issue is also a learned skill that comes with experience and knowledge.

Sure you can always put in a disclaimer if you are worried about being named in a lawsuit. Me, I stopped worrying about being sued about 15+ years ago after I realized I knew what I was doing.

[Phillip Stojanik]

It just have to smile when I come here and see the "local" people using "mould" rather than "mold" in their posts. Now I fully understand this came from CaoimhÃ*n P. Connell (who posts here on occasion) but surely the frequent users here understand that he uses the British spelling because he actually is from that part of the world (Ireland I think?).

Don’t get me wrong, I am not saying the usage is wrong or necessarily even inappropriate; it is however inconsistent with the standard spelling that we (and the overwhelming majority of our clients) here in the US have been taught and are accustomed to using.

Now if you are from Europe (or even Canada) then "mould" is the spelling that is expected from you. But if you are from the USA then "mold" is the spelling that is expected of you. If however you are one of those people who find it chik to use European terms and phrases then I guess using "mould" rather than "mold" would be consistent with that particular inconsistency.

Wait a minute! Did I just use the word "chik"? Oh my…

[Ian Page]

Now if you are from Europe (or even Canada) then "mould" is the spelling that is expected from you. But if you are from the USA then "mold" is the spelling that is expected of you. If however you are one of those people who find it chik to use European terms and phrases then I guess using "mould" rather than "mold" would be consistent with that particular inconsistency.

Wait a minute! Did I just use the word "chik"? Oh my…[/quote]


Yes...but it's more chic to say 'chic' than chik ... Oh shic, did I just say chic!

[Ken Harbeck]

It just have to smile when I come here and see the "local" people using "mould" rather than "mold" in their posts.

Not sure of your definition of local, however I am located in Alberta Canada which I myself would not call particularly local to Huston Texas, and where “mould� is the correct spelling.

That being said, if the use of a non-USA common spelling of a word offended anyone, especially of course Texans; I apologize. I was simply typing my thoughts.

[Kristi Silber]

Not sure of your definition of local, however I am located in Alberta Canada which I myself would not call particularly local to Huston Texas, and where “mould� is the correct spelling.

That being said, if the use of a non-USA common spelling of a word offended anyone, especially of course Texans; I apologize. I was simply typing my thoughts.

I, for one, am deeply offended that you committed such a grievous error here in our American forum. If yer gonna play with us, you gotta talk right, ya know? And if you spell it "mould" it's going to rhyme with "would," right? and that wouldn't be write. Rite?

[Rolland Pruner]

Bill be sure to give stong disclaimer.

[Matt Fellman]

The whole "mold-like" "appears to be mold" "may be mold" is really quite ridiculous.... the only way you get in trouble is if you're wrong.... if there's any doubt don't say it.... But 99% of the time you suspect it.... IT'S MOLD!!!!

Come on... just say it. It's a little hard the first time but you'll get used to it

HIs are so scared to even speak sometimes it's crazy. There really aren't as many lawsuits as HI folklore would lead you to believe... especially for calling something accurately.

I recently read a report from a competitor that said, "The window appears to be broken" !!!!! Are you serious? It "appears" to be broken??? The window if freaking broken!!!!! Grab your cahones and speak what you see!!!

Okay.... Easter rant over

[Bill Halstead]

My main concern would be not allowing your clients spending a lot of time in the home without them fully understanding the consequences! I spent 4 days hooked to an IV in the hospital due to hidden Mold behind the walls. So be careful and wear the P100 mask.

[Bill Wieczorek]

It turned out this home was so bad, filled with mold the buyer walked. They didn't even want to test the mold like substance on every room in the house. Gee that may mean another inspection from them. The roof had no shingles, it was covered with a big tarp.

[Gary wellborn]

To Clarify, "Mold is not just mold" if you have any type of respiratory issues or specific allergies.
Different molds such as stachybotrys (black mold), aspergillus,legionella will cause mild to severe allergic reactions in a large segment of the population. Anyone entering a known mold infested area should wear a respirator and full body protection.(preferably disposable)
Some of these mold spores can enter the body through the eyes and ears or attach to articles of clothing which can be transferred by contact.
If you want to take the risk of exposure please consider that you will likely expose others including those in your own household to these spores so you would be advised to take as many precautions as you can.
Proper mold sampling is required to determine the types of mold present. A certified mold inspector is responsible for collecting the samples and getting them processed at a qualified lab. A chain of custody form is required when collecting and processing mold samples.
Please feel free to contact me if you need more information.
Gary Wellborn
Certified mold inspector
Certified mold assessor
Licensed home inspector

[Raymond Wand]

Mandatory reading

Indoor Fungal Habits

[Raymond Wand]

LAW OFFICES

SOMMERS, SCHWARTZ, SILVER & SCHWARTZ

PR0FESSIONAL CORPORATION

JENNIFER M. GRIECO

2000 TOWN CENTER, SUITE 900

SOUTHFIELD, MICHIGAN 48075-1100

VIA FACSIMILE AND U.S. MAIL

XXX XXXX
President/CEO
XXXXXXX
XXXXXXXXXX
Waldorf, Maryland

Dear Mr. XXXXX:

It was good to speak with you again on Monday. In response to your request for information about the amount of litigation taking place with respect to residential mold related issues, I can tell you that I have filed three cases against home inspectors this year in Michigan and am currently investigating additional cases. I have been recently approached by a potential client to start litigation against a home inspector in Indiana. In addition, I am currently co-counsel in a case with a New York attorney who has had similar litigation experiences in New York. Furthermore, it is my understanding that there are hundreds of similar cases against home inspectors currently pending in California. As more media attention is given to toxic mold and its effects, the number of cases against home inspectors will rise significantly as they are a necessary party to any litigation involving the sale of a used home.

As I explained to you, I believe home inspectors have an enormous amount of exposure for liability when they fail to properly notify the homeowner of sources of water damage and a potential for a mold problem. We have recently settled one case against a home inspector for $250,000. The home inspection therein cost $300 and lasted only four hours. However, the home inspector failed to notify his clients of the absence of brick flashing, which absence allowed water to penetrate into the home. The inspector failed to notify the homeowners of grading problems surrounding the grounds of the home or to fully enter the crawl space for an inspection. Had he taken that additional step, he would have seen standing water in the crawl space and visible fungi. In addition, the inspector failed to inspect the roof of the home because of alleged weather conditions. However, the additional step of a roof inspection with the aid of binoculars would have saved my clients from incurring a substantial loss.

Michigan requires sellers of homes to provide the prospective purchasers with a Sellers Disclosure Statement, disclosing all known conditions. However, many of these cases revolve not around what was hidden or not disclosed by the seller, but what was there to be seen by the home inspector as the expert, but which was simply missed. I would ask that you stress to your home inspectors the seriousness of the home inspector’s duty. The home inspector IS the buyer’s due diligence when determining whether or not to purchase a home. Subject to that home inspection, the buyer purchases the home AS IS. In the case that recently settled, my clients pay a substantial amount of money for their home. Not only did they lose the value of their home, as it is currently only worth the land it sits on, but also all of their porous personal belongings that could not be cleaned and decontaminated. In addition, these toxic fungi affected their health and the health of their children. We sued the home inspector for the loss of the value of the home, the loss of the personal belongings, their personal injuries and emotional distress. Luckily this home inspector had insurance.

While the case against the home inspector settled in part only because of the Michigan Court Rules and their requirement for mandatory mediation, we were disappointed that we were unable to present this case to a jury. The majority of jury members are homeowners who like my clients, trusted the opinion of their home inspector as to whether or not to purchase their home. There is no doubt that a jury would be sympathetic to a family in this situation and award substantially more than the $250,000 settlement amount.

At mediation the inspector’s attorney attempted to argue that the inspector should not be responsible for all of my client’s losses because the inspection fee was only $300 and the inspector was only in the home for four hours. Therefore, the attorney argued, how could the inspector be held responsible for their losses? This argument was shot down by the mediators. Just because a home inspection service is provided at a low cost does not limit the inspector’s responsibility for all of the damages that result from the inspector’s negligence. If my clients would have paid $600 for the home inspection would the inspector have detected these deficiencies? Does the fact that my clients only paid $300 for an inspection entitle the inspector to perform his services in a negligent manner? The mediators held that it did not. The inspector was responsible for a complete and thorough home inspection and for any damages that resulted from this failure to provide such a competent inspection.

I have been approached to provide a news story here in Michigan regarding this recent settlement. I believe that the “angle� for the story will be how homeowners can prevent this from happening to them. Some of the helpful points we have discussed are;

1. Not using a home inspector recommended by their real estate agent or the seller’s real estate agent;
2. Asking if the home inspector is a member of ASHI;
3. Asking if the home inspector has errors or omissions liability insurance and how much the policy is worth;
4. Requesting that their home inspector use a moisture meter;
5. Asking if the home inspector has any experience or training in detecting evidence of water leaks and/or a potential for a mold problem; and

6. Having the home inspected or re-inspected by a contractor or architect who comes highly recommended from an outside source.

While these pointers may assist purchasers in the future when hiring a home inspector, people continue to purchase homes on a daily basis relying upon the assistance of home inspectors. If their inspectors either lack the proper training or choose not to take the extra steps to perform the best possible home inspections for their clients, the potential home purchasers, they are subjecting themselves to potential liability for a negligent home inspection. If the home becomes contaminated by a toxic fungi as a result of water leaks or other moisture problems which could have and should have been detected by a home inspector, the home inspector will be named as a defendant in litigation seeking redress for real and personal property losses and any resulting personal injury.

It is my understanding that you are currently training home inspectors regarding the detection of mold problems in homes that they inspect or the detection of a potential mold problem from water leaks and/or moisture intrusion. I hope that by relaying some of this information to them, these home inspectors will understand the serious consequences of a negligent home inspection and become educated as to the extra steps that can be taken in order to avoid causing these types of losses and the resulting litigation.

If you have questions regarding any of the foregoing, please do not hesitate to contact me.

Very truly yours,

SOMMERS, SCHWARTZ, SILVER & SCHWARTZ, P.C.

[Raymond Wand]

From a British Columbia Supreme Court point of view regarding 'mould'.

Citation:
Derosa v. Horning et al
Date: 20011130

2001 BCSC 1670
Docket: 27485
Registry: Kamloops

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

stella derosa

plaintiff

AND:

MARY HORNING ALSO KNOWN AS MARY SKRYPNYK, BILL SUTHERLAND CARRYING ON BUSINESS AS “THE WOOD SHOPPE HOME INSPECTION SERVICE” AND THE WOOD SHOPPE HOME INSPECTION SERVICE, THE OWNERS STRATA PLAN NO. KAS1430, CMI MANAGEMENT LIMITED CARRYING ON BUSINESS AS “SHERIDAN REALTY”, SUTTON GROUP – WESTWIN REALTY LTD., AND SUZANNE GOODELL

DEFENDANTS

REASONS FOR JUDGMENT

OF THE
HONOURABLE MR. JUSTICE HUNTER

Counsel for the Plaintiff - J. M. Drayton

Counsel for the Defendant, Mary Horning, D. E. McCabe

Counsel for the Defendants, Bill Sutherland c.o.b. as the Wood Shoppe Home Inspection Service and the Wood Shoppe Home Inspection Service -J. Vamplew

Counsel for the Defendants, Sutton Group – Westwin Realty Ltd. and Suzanne Goodell, A. Rhodes

Counsel for the Defendants, the Owners of Strata Plan No. KAS1430 and CMI Management Limited c.o.b. as Sheridan Realty - J. Hodes

Date and Place of Hearing:
August 8 & October 11, 2001
Kamloops, BC

[1] All defendants apply under Rule 18A for an order dismissing the plaintiff’s claim.

[2] The defendant Mary Horning (“Mrs. Horning”) died on December 28, 2000. The executrix of her estate is her daughter Helen Kashluba. Mrs. Horning was the former owner of a condominium, being unit 6 – 1876 Tranquille Road, part of Strata Lot KAS 1430, a strata complex known as Kirman Mews located on the North Shore in the City of Kamloops.

[3] Kirman Mews consists of two buildings each containing ground floor units which have basements together with upper floor units which are single level apartments. Unit 6 (“the property”) is a ground floor unit consisting of a main living area on the ground floor, and an unfinished basement.

[4] Mrs. Horning moved into this property in or around January 1995. On March 14, 1997, she listed the property for sale and in April of that year sold it to the plaintiff Stella Derosa (“Ms. Derosa”). At the time of sale Mrs. Horning was 79 years of age.

[5] Ms. Derosa filed her statement of claim on July 23, 1999. She sues the Horning Estate alleging breach of contract, misrepresentation and negligence, claiming that Mrs. Horning failed to disclose a water leakage into the basement of Unit 6 and the presence of mould in the basement. Ms. Derosa claims that on viewing the property before purchase she advised Mrs. Horning and the defendant realtor, Ms. Goodell, that she had asthma, respiratory sensitivity, and a severe allergy to mould and moisture related toxins.

[6] Ms. Derosa also claims that Mrs. Horning failed to inform her of the presence of liquid containing feces and noxious gases on the property and of the high level of noise heard inside this property.

[7] Ms. Derosa claims that Mrs. Horning is in breach of contract or in breach of warranty in that Mrs. Horning stated in the Property Disclosure Statement that she was not aware of any moisture or water problems in the basement of the property.

[8] Ms. Derosa has a history of suffering from a number of allergies, asthma and mould problems over 25 years. Her allergies to mould have resulted in time off from work from time to time since 1972. In the late 1970s and early 1980s she began missing work because of allergies to paint fumes and because of asthma attacks. In the early 1980s she began missing work because of allergies to new file folders at her place of work. In the early 1990s she began missing work caused by allergies to mould.

[9] Ms. Derosa inspected the property on four occasions, all before April 15, 1997, the date of closing. Those inspections occurred on or about March 15th, on or about March 16th, on March 19th, and on another occasion shortly before the closing date.

[10] Ms. Derosa decided to contract for a home inspection prior to committing to purchase the property and retained the services of the defendant Bill Sutherland, carrying on business as “The Wood Shop Home Inspection Service” (“Sutherland”). Mr. Sutherland inspected the property on his own and later on March 19, 1997 (but before preparing his report), went through the property with Ms. Derosa, including the basement.

[11] Ms. Derosa claims that Sutherland was negligent in failing to adequately conduct a home inspection of the property, in particular that he failed to notify Ms. Derosa of cracks in the basement and foundation and of the presence of water leaks and mould and moisture in the basement area and of the presence of liquid containing feces and noxious gases, and that he failed to tell Ms. Derosa of the ability of liquid containing feces and noxious gas to enter the property.

[12] Ms. Derosa says she saw a “black spot” on the concrete basement floor when she went through the basement with Mr. Sutherland and that she asked Mr. Sutherland about it and told him, “If that is mould, I cannot live here.” Mr. Sutherland had no recollection of a black spot or patch on the basement floor nor of Ms. Derosa questioning him about that nor of her making this comment to him. Ms. Derosa said that Mr. Sutherland attended again at the condominium although she could not recall the date. Mr. Sutherland said this was on January 12, 1998. She said he told her then, as a result of using a moisture meter on that occasion, that there was moisture in the walls of the basement. He denies this, saying as well that she was not in the basement when he did this testing. He said he found no moisture in the walls and denies telling her that. He says he told her that the moisture meter indicated there was no moisture. He also said he saw no black patches on the basement floor on January 12, 1998. Ms. Derosa relies on photographs which she says were taken in November 1997 and later in March 1998 and perhaps at other times, and which she says show spots or stains on the basement floor. This conflict in evidence between Ms. Derosa and Mr. Sutherland might in other circumstances create problems with regard to resolution of the issues on an 18A application. I am satisfied, however, that this conflict need not be resolved on this application because of my conclusion that Ms. Derosa has not proved, on a balance of probabilities, that there was mould in the condominium other than in the soil in the plants located on the main floor. Those plants were put there by Ms. Derosa.

[13] Ms. Derosa claims that water leaked into the basement of the property on other occasions after she purchased, and that mould grew from the moisture causing her health problems. She claims that “The Owners Strata Plan No. KAS 1430” (“the Owners”) and the Owner’s agent, CMI Management Limited, carrying on business as Sheridan Realty (“Sheridan”) were negligent in carrying out their duty to Ms. Derosa and thus breached their duty of care causing her to suffer damage. Sheridan’s duties as agents for the owners included the day-to-day operation of Kirman Mews, building maintenance and bylaw enforcement.

[14] The first such incident claimed by Ms. Derosa to have occurred was in May 1997, one month after Ms. Derosa took possession of the property. The storm sewer lines backed up, causing water to enter some of the basements of the ground floor units, including the basement of Unit 6, particularly the area at the foot of the basement stairs. Sheridan arranged for the flushing of the storm sewers to correct the water backup problem.

[15] There was no further contact from Ms. Derosa to Sheridan regarding water egress until October 24, 1997, when Ms. Derosa reported a leak in the basement of Unit 6 along the back wall of the basement. On the same day Sheridan’s maintenance person, Mr. Moulds, inspected Unit 6 and found no water in the basement.

[16] On November 6th Ms. Derosa again contacted Sheridan to report a water leak in her basement. On November 7th Mona and Chris Murray, the principals of Sheridan, inspected Ms. Derosa’s basement. They found numerous plastic flowers, ribbons, craft materials, styrofoam and other materials in the basement, as well as more than 50 live potted plants on the main floor which they said covered “what seemed to be every available surface”. There was some evidence that Ms. Derosa was growing these plants to give to patients at an extended care facility. Ms. Derosa denied having so many plants in this property at this time.

[17] The only crack observed by the Murrays on November 7th was one small crack on the west wall of the basement which Mona Murray described as a hairline crack. The bylaws of the Strata Corporation provided that Ms. Derosa, as the owner of Unit 6, was responsible for the maintenance of the interior of the unit and that the Strata Corporation was responsible for the exterior portions of the buildings. Even though maintenance and repair of the interior of the unit was Ms. Derosa’s responsibility, Sheridan instructed the maintenance person, Mr. Moulds, to repair this crack with a common basement crack sealant, and he did so on November 13th. On the same day, Sheridan advised Ms. Derosa in writing that if she experienced further leaks, she should tell Sheridan, who would then have the crack repaired by excavating outside her unit at the expense of Sheridan’s principals, namely the owners under the strata plan.

[18] On November 18th, Ms. Derosa advised Sheridan again that her unit was leaking. On November 21st Mona Murray attended at Unit 6 with a civil engineer and a structural engineer to inspect and assess the cracks in Ms. Derosa’s basement. They found a small odorless amount of water on the floor at the bottom of the west wall. They also noted on that date the presence of all of the various materials and house plants which were observed by the Murrays on November 7th in Ms. Derosa’s condominium.

[19] Meanwhile, on November 18, 1997, unknown to Sheridan, Ms. Derosa obtained the services of Alf’s Concrete to excavate outside her unit and repair from the outside. Without Sheridan’s knowledge, Alf’s Concrete effected the repairs on the foundation outside Unit 6. Sheridan received no further complaints from Ms. Derosa relating to water leakage in her unit and Sheridan therefore invites the court to conclude that thereafter there were no more leaks into her unit.

[20] There was also an allegation that Ms. Derosa complained on a number of occasions in 1997 and 1998 (after the date of purchase) of noise emanating from units around her unit and evidence of efforts by Sheridan to assess those complaints and communicate Ms. Derosa’s concerns to the occupants of those units. Ms. Derosa seeks damages against Sheridan arising out of this noise complaint but I have concluded that she has not made out this claim against Sheridan on any basis.

[21] Ms. Derosa claims that she told the defendants Sutton Group – Westwin Realty Ltd. and Suzanne Goodell (who I will refer to collectively as “Goodell”) of her allergies, that Goodell represented that there was no mould or moisture on the property, alternately that Goodell knew or ought to have known that moisture and mould were present in the property and that in fact moisture and mould were present in the property.

[22] Ms. Derosa further claims that Goodell should have known that she would rely on Ms. Goodell’s representations that there were no moisture or mould problems on the property thereby inducing her into purchasing the property. As well, Ms. Derosa claims that Ms. Goodell ought to have been aware of the liquid containing feces or noxious gases or the ability of liquid containing feces or noxious gases to enter the property, that Ms. Goodell failed to disclose this to Ms. Derosa and that if she had been told about it, she would not have purchased this property. Ms. Derosa claims that Ms. Goodell represented, on behalf of Mrs. Horning, that very little noise would be heard from inside the property when in fact, Ms. Derosa claims, there were high volumes of noise and that these representations were also relied upon by her.

[23] Ms. Rhodes, on behalf of Goodell, submits that Ms. Derosa has not established on a balance of probabilities that the condominium contained mould and says that there is no evidence that liquid containing feces or noxious gases were on the property nor that they had the ability to enter the property or ever entered the property, and that there is no evidence of noise of any consequence and no evidence that Ms. Goodell made any representation with respect to noise.

[24] Ms. Derosa claims that she had no knowledge of possible leaks of water into the basement prior to purchase. The defendants claim she did. It is not necessary for me to make a finding on this conflict in view of the conclusion I have reached that Ms. Derosa has failed to prove the presence of mould at the time of sale or thereafter as alleged against Sheridan. However it seems clear, and I have concluded so, that Ms. Derosa had to be aware on March 22, 1997, (before the sale completed) that there was a concern by the strata owners about possible water leaks into the basements because she acknowledges this on the “Contract Amendment Form” which she signed on that date. That amendment form referred to Mrs. Horning having agreed to pay an additional assessment of $300 in accordance with a Special Resolution of the strata owners of that date which addressed the question of the possibility of further water seepage in the basement units. I have concluded that Ms. Derosa must have read this material before signing the “Contract Amendment Form” on March 22, 1997, and thus been aware of the ongoing investigation into the possibility of further water seepage into basement units. This does not of course establish that there was water seepage nor the presence of mould.

The Claim Against the Vendor.

[25] Ms. Derosa claims that Mrs. Horning was aware of the condition of the property which gives rise to the cause of action, that these were latent defects known to Mrs. Horning at all relevant times which by their nature could not be ascertained by Ms. Derosa, even by inspection of the property before purchase. As I understand the argument put on behalf of Ms. Derosa, she is not alleging a patent defect, nor that Mrs. Horning has misled her by attempting to alleviate her suspicions. In any event, I find no evidence that there was a patent defect nor any evidence that Mrs. Horning did anything inappropriate to mislead Ms. Derosa as to the condition of the property.

[26] The law with reference to the obligations of a Vendor with regard to latent defects was summarized by me by reference to other case authority in Eberts v. Aitchison, [2000] B.C.J. No. 1501 (Q.L.) (B.C.S.C.) at para. 20:

The legal distinction between patent and latent defects was referred to by Edwards J. in Anderson v. Kibzey, [1996] B.C.J. No. 3008 (8 October 1996) 22662 Kamloops (S.C.B.C.) at p.3:
In addition the words of Leggett J. in Davis v. Stinka, [1995] B.C.J. No. 1256 (15 May 1995) S1135 Campbell River (S.C.B.C.) at p. 10 are useful. He said:
The B.C. Real Estate Law Guide, paragraph 1820 on p. 954, sets forth the general law as follows:
The general law relating to the disclosure of facts by the vendor is still that of caveat emptor - let the purchaser beware. Defects are regarded as being of two kinds – latent or patent. Patent defects are those that can be discovered by inspection on ordinary vigilance on the part of the purchaser and with respect to them the ordinary rule is caveat emptor. Latent defects are those which would not be revealed by any inquiry which a purchaser is in a position to make before entering the contract. The vendor is thus under no obligation to disclose patent defects. It is up to the purchaser to ascertain them either by inspection or inquiry. By the same token the vendor must not act so as to mislead the purchaser or allay his suspicions....
And at para. 22:

A vendor can be found liable for latent defects if he fraudulently or negligently misrepresents the condition of the property, but where the vendor acts with honest intent, this necessarily negates any fraud....


And at para. 24:
In 44601 B.C. Ltd. v. Ashcroft (Village), [1998] B.C.J. No. 1964 (B.C.S.C.) Burnyeat J. said at para. 45:
Where a vendor knows of the latent defect but fails to disclose that latent defect to a prospective purchaser, the vendor may be held liable for fraudulent misrepresentation: Rowley v. Isley, [1951] 3 D.L.R. 766 (B.C.S.C.)....

[27] The law with regard to negligent misrepresentation, fraudulent misrepresentation, and breach of warranty has been cited by counsel, but in view of my findings of fact, which I will now turn to, it is unnecessary to refer to those legal principles.

[28] Ms. Derosa inspected the property on at least four occasions before closing and before the “subject to” clauses were removed by her, and found no evidence of a water leakage into the basement, nor of mould or liquid containing feces or noxious gases anywhere on the property. She did, however, claim to see a “black spot” to which I have referred. She retained the defendant, Mr. Sutherland, to conduct an examination of the interior of the premises and he found no evidence of these materials. On one occasion he inspected the property with Ms. Derosa.

[29] When the real estate agent, Ms. Goodell, attended the property, she also found no evidence of moisture or dampness in the basement. Mrs. Horning’s listing agent, Michel Peron, inspected the premises before Ms. Derosa. He found no evidence of water, moisture or moulds, and stated that the inside of the premises did not smell musty. Mrs. Horning’s daughter, Mrs. Kashluba, estimated that she was in her mother’s basement on at least four occasions during the time that Mrs. Horning resided there and helped her mother move her belongings out of the basement in April 1997. She saw no evidence of water, moisture or mould. Mrs. Horning’s son, Don Horning, said that he stored his own belongings in his mother’s basement for approximately two years in cardboard boxes and that when he removed them in 1997, there was no damage to the contents nor any mould present in these boxes. He estimated that he was in his mother’s basement on at least forty occasions during the time that she resided there.

[30] Both Mrs. Kashluba and Don Horning said that they never saw mould or moisture in any part of the premises, nor did they smell any odors of the nature alleged by Ms. Derosa, nor did they ever see any liquid containing feces or smell noxious gases on these premises. They said as well that their mother never spoke to them of the presence of mould or moisture or odours of the nature alleged by Ms. Derosa of liquid containing feces or noxious gases. Ms. Derosa conceded in her examination for discovery that she has never noticed the presence of liquid containing feces in the premises.

[31] There was one occasion on November 21, 1997, some months after the purchase was completed, where what was described as a small odorless amount of water was observed by the Murrays, on the floor of the basement at the bottom of the west wall.

[32] As to the allegation of excessive noise, I have concluded that Ms. Derosa did not make the absence of excessive noise a condition of purchase, and in any event has not proved the existence of excessive noise on any occasions which she alleges.

The PHH Environmental Opinion Report Commissioned for the Plaintiff.
[33] This report is dated September 22, 1999, and relates to an investigation of the property conducted by this company on August 18, 1999, more than two years after the date of purchase. This document contains the following:

1.0 INTRODUCTION
...
1.2 Scope of Work
The scope of work comprised a visual examination of readily accessible surfaces, as well as collection of air, dust and bulk samples.
...
4.0 METHODOLOGY
A visual examination was made of readily accessible surfaces in the basement of the building. In order for mold to amplify in a building there must be a nutrient source and sufficient surface moisture to allow recovery of enzymes exuded to digest the nutrient.
A dust sample was collected from the floor, and air samples were collected from the basement, lounge and the ambient outside air using a Reuter Centrifugal Systems Biotest sampler. Prolific mold growth was evident on the soil in plant pots in the lounge and a bulk soil sample was collected.
...
5.0 OBSERVATIONS
Ms De Rosa reported chronic symptoms including sinus problems, catarrh, wheezing and sleep difficulties. These symptoms are amongst those associated with mold exposure, though they are non-specific and may also result from a number of other causes. Ms De Rosa reported that a few hours after leaving the building these symptoms would diminish, and would return almost immediately following re-entry. Ms De Rosa had not occupied the property for a considerable time prior to this investigation.

Ms De Rosa reported that there had been a history of water seepage into the basement of the building. Historic gutter and drainage defects were reported at the rear of the building. At the time of inspection concrete walls and floors in the basement appeared dry, though examination of the upper four feet of wall surface was not possible due to drywall paneling.

There was some evidence of cracking in the floor, though it was not possible to visually determine whether cracking was surficial or it might allow ingress of groundwater. Some staining was evident on the floor, but insufficient visible mold growth was found in the stained area to allow the collection of a bulk sample.

[34] The report of PHH Environmental which is entitled “Mold Investigation” commences with an “Executive Summary”. The Executive Summary contains the following:

From the results of the investigation, PHH Environmental Limited concludes:

1. A single colony of Aspergillus Versicolor was evident in the basement air sample.
2. A single colony of Aspergillus Versicolor in the basement air sample without confirmatory visual identification or bulk sampling is inconclusive, but may be indicative of a building amplification site. Further air and surface sampling would be required to determine whether the presence of this species was a result of amplification or was merely coincidental.
3. Trichoderma hamatum was recovered from the soil sample collected in the lounge. Trichoderma species are commonly found in soil and produce antibiotics that are toxic to humans. This species was not evident in the air sample in the lounge.
4. Fungal growth is common in soil in plant pots in buildings, but should not be confused with fungal amplification in building materials. If mycotoxic fungi present in soil become airborne they can produce adverse health effects, but the problem may be simply remedied by the removal or re-potting of the plant.
5. The results of this investigation reflect conditions at the time of the investigation. They do not necessarily reflect conditions that occurred throughout the period of Ms De Rosa’s occupation of the property.

Based on the conclusions and observations, PHH Environmental Limited recommends:

1. Further air and surface sampling should be carried out to determine whether the presence of Aspergillus Versicolor was a result of amplification or was merely coincidental.
2. Care should be taken to ensure that soil fungi are not allowed to amplify to the extent that they become airborne in significant numbers. For the exquisitely sensitive individual even low levels of airborne fungal spores can cause adverse reactions, in which case all soil should be removed from the indoor environment.

[35] This report refers to PHH having taken samples from soil present in “the lounge”. I understand “the lounge” to be part of the main floor of Ms. Derosa’s condominium.

[36] The report of PHH is not helpful to Ms. Derosa. This report is inconclusive even as to circumstances existing on August 18, 1999, and tells us nothing of the condition of this property in the months of March and April 1997, over two years before. There is as well some evidence that her health complaints may very well be the result of the presence of mould in potted plants observed in the premises in early November 1997 by Ms. Murray, a principal of Sheridan. My understanding is that the PHH soil samples were taken from plants on the main floor.

[37] Dr. Arkinstall provided an opinion report to plaintiff’s counsel dated November 16, 2000. Dr. Arkinstall is a consulting physician in Respiratory Medicine and Allergy and has been engaged in that practice in Kelowna since 1973.

[38] He saw Ms. Derosa on January 25, 1999, and on February 17, in March, on June 9, on September 13, and on November 25 of that year. He had not seen her after November 25, 1999, when he wrote this report, although she was scheduled to be seen by him on November 27, 2000.

[39] Dr. Arkinstall stated in his report that on her first visit allergy tests were performed which showed her to be reactive to a number of antigens, particularly trees, grasses, weeds, animals and house dust. He made no mention of moulds at that time.

[40] Ms. Derosa told Dr. Arkinstall on her first visit that there was “considerable mould” in the property. At page 3 of his report to Mr. Drayton he said:
ii From the history I have obtained, and from the evidence you have supplied, I believe Ms. Derosa’s symptoms were markedly aggravated and her severe status asthmaticus was precipitated by exposure to her condominium. The most likely factor in the condominium was the mold she described.

[41] Dr. Arkinstall therefore, in concluding there was mould present in the property, relied on the history provided by Ms. Derosa and her conclusion that there was mould in the property. He relied also on the report of PHH Environmental Limited, and a report by “Roto-Rooter”. Roto-Rooter’s “report” is not before the court and I have concluded that is so because it does not qualify as an expert’s report if it indeed contains any opinion on the subject of mould. As well there was a suggestion in argument that the Roto Rooter report related to unit 3, not unit 6.

[42] The PHH report is, as I have said, inconclusive as to the presence of mould in the property, either at the date of inspection by PHH or at the time of purchase. The only information which Dr. Arkinstall had as to the presence of mould in the premises is from Ms. Derosa herself, which is not supported by the evidence or any expert qualifications on her part.

[43] I cannot rely on Dr. Arkinstall’s opinion that mould was present in the property at the time of purchase. In any case, it is not appropriate for Dr. Arkinstall to express such an opinion. He simply assumes the presence of mould which he is entitled to do for purposes of his medical opinion. It is obvious that Ms. Derosa was in considerable medical difficulty when first seen by Dr. Arkinstall. I refer to page 2 of his report and his reference to that first visit which occurred on January 25, 1999:

On examination, she was extremely short of breath. She had even had difficulty even (sic) carrying on a conversation of any extent. She had a constant cough and minimal exercise provoked severe physical distress.

Her breath sounds showed a marked inspiratory and expiratory wheeze consistent with asthma. She was moderately obese; however, certainly not to the extent of causing significant health problems. When I saw her in my office, I felt it was unsafe for her to return to Kamloops. She had actually come from Kamloops on the bus. She was therefore admitted from my office to the Kelowna General Hospital where she was treated until February 4th.

In hospital, she was treated with aggressive, intravenous and other therapies. Her chest and upper airways slowly cleared. At the time of discharge, she was still showing a marked reduction in her expiratory flow rates. She was discharged on inhaled corticosteroids, oral and inhaled bronchodilators. She was also put on multiple therapies with a decongestant and an inhaled corticosteroid for her nasal symptoms.

[44] The issue is not whether Ms. Derosa is allergic to moulds, rather it is whether mould was present in the property at the time of purchase. The onus of proof is upon Ms. Derosa on a balance of probabilities. I find that she has not met that onus.

[45] In particular, I find that the evidence does not lead to the conclusion that there was moisture, mould, water leakage, fecal matter, and/or noxious fumes present in the property at the time of purchase, nor for that matter at a later date. There may have been mould in the soil of the potted plants, but the plants were placed there by Ms. Derosa, not the defendants. It follows that there is no evidence of a causal relationship between the conduct of the defendants and Ms. Derosa’s medical complaints. As well, Ms. Derosa has not made out her claim that there was “excessive noise” in the condominium unit.

[46] With further reference to the claim against Sheridan, I find that the Strata Corporation through its agent Sheridan did all it could reasonably have done in the circumstances, which was to enforce the bylaws, and maintain or repair the common property of the complex.

[47] Accordingly, the plaintiff’s claim is dismissed as against all defendants. The defendants will have their costs at Scale 3.

"R.B. Hunter, J."
The Honourable Mr. Justice R.B. Hunter

[Garry Sorrells]

Raymond,
1st case: Point being that the inspector said to little, missed something (absence of brick flashing, grading problems, standing water in the crawl space and visible fungi, no roof inspection with the aid of binoculars)?
"....home inspection therein cost $300 and lasted only four hours...."

2nd case: People make things up in an attempt to affix blame to someone other than themselves?

Neither were directed at a HI for identifying mold (mould) and not being certified in mold identification. But interesting none the less.