Jon:
Annie in St Kilda, morning to you Annie.
Annie:
Good morning, David and Jon. I bought a house last year and about six weeks after moving in, I noticed that the water was damp outside the ensuite bathroom.
Jon:
You mean the wall was damp?
Annie:
No, the carpet was wet.
DW:
Okay, the inside of the house. Outside the bathroom but inside the house.
Annie:
Yes. Anyway long and short, it’s taken four or five months but I’ve had builders, plumbers and architects have a look at it and it turns out that it’s been leaking – the shower or the membrane of that bathroom has been leaking – for, they would say, about five years.
Jon:
Was it not apparent on inspection before purchase?
Annie:
It was not apparent except that there was some faded carpet near the bathroom where it meets the tiles. And I said to the real estate agent what’s that? And he said I’ll check on it for you and he came back to me and he said the owners say they had a leak in the shower but it’s been fixed.
DW:
Okay. How old is the bathroom, Annie?
Annie:
It was done in 2010, so not very old.
DW:
There might be a builder’s guarantee.
Annie:
I understand that’s seven years, I think.
DW:
Six years and six months.
Annie:
Something like that. I checked that. What a friend of mine said to me is because it’s misleading and deceptive conduct the plumber, the builder, everyone says they couldn’t possibly have been using that bathroom while it was for sale. They must have been using the downstairs bathroom.
Jon:
So as not to make it obvious there was a problem.
Annie:
Yes. Because I only found out after six weeks because it was quite a slow leak.
DW:
The problem is, Annie, in order to catch the deceptive and misleading it needs to be in trade or commerce. So if I was a professional builder and I did up houses and sold them and you bought one from me, in those circumstances you would have a claim against me.
Jon:
So the vendor is not engaged with trade or commerce with, Annie. But the estate agent is.
DW:
Well it depends. You’re going to have to prove that the estate agent was told something different to what he passed onto Annie.
Annie:
Yes and look he’s not going to do that. I’ve already asked him to make a statement and he won’t even do that.
Jon:
Annie cost of rectification have you had a quote?
Annie:
I’ve had it done because I have to live with it.
Jon:
How much?
Annie:
It came to about $27,000.
DW:
Ouch.
Annie:
Because they had to pull out the whole bathroom.
Jon:
Okay, can she go to VCAT?
DW:
That’s the problem, she’s got no claim against the vendor unless she can prove it was in trade or commerce.
Jon:
What about for breach of the contract of sale in the Section 32 where you’re supposed to disclose these things.
DW:
I have these problems from time to time. There’s a list of things you are required to disclose. There’s a whole list of other things you might disclose but you’re not required to.
Jon:
But you send all those requisitions on title. Don’t you have questions saying is there anything you should tell me?
DW:
Well no, that’s not a question as to title. The nature of requisitions, which were a series of questions that a purchaser was entitled to ask a vendor went to title. It’s what you own, not the quality of what you own.
Jon:
Right.
Annie:
I was told that a building inspection wouldn’t have uncovered it, it was a very slow leak and that’s why it took six weeks or something of me using the shower every day for the carpet to become wet. When you lifted the carpet you could see running water actually. But it took six weeks of the daily use of the shower.
So there’s nothing which says that they deliberately hid something.
DW:
No, no.
Annie:
That’s extraordinary, don’t you think? A building inspection wouldn’t have revealed it.
DW:
No you often get to a situation Annie where it’s a question of not knowing. If you were to buy from me I don’t know what it is you want to know. If you’re going to pull the house down and build something else, there’s a whole lot of things I wouldn’t tell you because you didn’t need to.
Jon: Is there anything Annie can do for her $27,000 worth of loss?
DW:
Not unless she can prove an obligation of the vendor that was breached and the deceptive and misleading conduct provision only applies in trade or commerce.
Jon:
One more idea Annie, did you have a pre-purchase inspection by a builder or an architect?
Annie:
No. The architect later told me that it wouldn’t have been revealed because you couldn’t see anything and nothing was damp but they did put stuff on the wall.
Jon:
To disguise it. Well there you go.
Annie:
Yes. They just hadn’t used it.
DW:
My final answer is this, if the problem’s been fixed, then why don’t you ask the vendor for copies of the invoices that were provided by the people that did the fixing? So that you can have a talk to them.
Jon:
Alright, good luck there.
Final word on burglar alarms. Has anyone thought there might be a burglar in there? Who might be getting very hungry by now if they’ve run out of food.
DW:
(laughs) Thank you, Jon.
Jon:
Anyway, that’s just the last text message on the topic. David look forward to seeing you again. I won’t be here next Tuesday just for the day but I’ll see you the week after.
DW:
Look forward to it. Thanks, Jon.