Licence Tribunal Appeal d'appel en Tribunal matière de permis
DATE: 2010-11-22
FILE: 5998/ONHWPA
CASE NAME: 5998 v. Tarion Warranty Corporation
An Appeal of a Decision of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act – to Disallow a Claim
Applicant
Applicant
-and-
Tarion Warranty Corporation
Respondent
-and-
Maple Crest by Serrani Inc. Added Party
REASONS FOR DECISION AND ORDER
ADJUDICATOR: KEN SELBY, Member
APPEARANCES:
For the Applicants: APPLICANT, unrepresented
For the Respondent: NATALIE MULLINS, Counsel, representing Tarion Warranty Corporation
For the Added Party: PETER SERRANI, representing the Added Party (Maple Crest by Serrani Inc.)
Heard in Toronto: November 15, 2010
REASONS FOR DECISION AND ORDER BACKGROUND
This is an appeal by the Applicant to the Licence Appeal Tribunal (the “Tribunal”) from a Decision Letter of Tarion Warranty Corporation (“Tarion”) dated February 26, 2010 with respect to a home purchased from, Maple Crest by Serrani Inc. (the “Added Party”), in which Tarion denied (in part) the Applicant's claim.
FACTS
The Applicant is currently appealing the following four items from the Year-End Form which were not warranted:
Incorrect garden doors installed (item 2)
Window above front door is scratched (15)
Kitchen | Window above sink scratched (outside) (19)
Exterior | Front elevation does not match plan (21)
ISSUES
The Applicant referred to the design changes in Schedule B of the Agreement of Purchase and Sale ("APS").1 Item 7 states: "Triple garden doors to patio in lieu of back window, as per Lot 144 Cloverleaf, with 2 exterior side light fixtures." The Applicant expected to get the door combination shown in the photo of Lot 144.2 The Added Party installed the triple door shown with a rectangular transom rather than the elliptical one shown in the previous photo.3 The Applicant felt this constituted a substitution which required his consent under Section 18 (1) of the Ontario New Home Warranty Plan Act ("Act").
and 3. Two windows were reported to have scratches on the outside. The Applicant believes that the Builder's workers caused these scratches. These scratches were severe enough; it was only a matter of trying to decide who caused them.
The Applicant noted the architectural rendering, which was located near the end of his APS, did not look the same as his home. In this rendering, the roof line above the front door appears to be continuous with the roof over the second floor bedroom. A photo of the Applicant's home shows the roof over the front porch is not in line with the upper portion of the roof.4 This small roof area has been lowered so it ends under the soffit of the upper floor roof.
THE LAW
WARRANTIES 13. (1) Every vendor of a home warrants to the owner,
(a) that the home,
(i) is constructed in a workmanlike manner and is free from defects in material,
(ii) is fit for habitation, and
(iii) is constructed in accordance with the Ontario Building Code;
(b) that the home is free of major structural defects as defined by the regulations; and
(c) such other warranties as are prescribed by the regulations.
SUBSTITUTIONS 18. (1) Every vendor of a new home warrants to the owner that the vendor shall make no substitutions in those items of construction of finishing for which the purchaser is entitled to make selection pursuant to the purchase agreement without the written consent of the purchaser.
EVIDENCE
- The Added Party assumed the transom above the triple door should match the adjacent window. The Lot 144 transom had an elliptical shape while the subject property received a rectangular shaped transom. Furthermore the ceiling height was 10 feet in the custom home on Lot 144 while it was 9 feet in the subject home. Placing an
elliptical transom over a door with a 9 foot ceiling would require additional structural design and even shift the plane of the door. The extra height would affect the support system for the second floor and would likely move the door 4.5 inches toward the exterior affecting the brick reveal.
and 3. There was no dispute that these windows were scratched. However, these scratches had not been noted on the Pre-Delivery Inspection ("PDI") or the 30 Day Report.
The Added Party indicated that an architectural rendering is only a representation of that which is to be built. He noted that six homes of the same Belair model were built before the Applicant purchased his home. This model would provide the Applicant with a more realistic picture of the home soon to be built. In addition he noted that all six had some differences in appearances mainly due to site grading.5 The evidence was that the revised porch roof permitted an improved flashing detail.
APPLICATION OF LAW TO FACTS
The APS which was signed by the parties makes no mention of the transom. Since this transom for the triple door was not specified it is not reasonable to call this a substitution as dealt with by Section 18. (1).
and 3. The Construction Performance Guidelines, in Section 3.5, place the onus on the homeowner to establish that the Builder caused the damage when the scratched windows were not noted on the PDI Form.6 The Applicant was unable to prove that the builder was responsible for these scratches.
The APS in section 13. (2) states "The Vendor, in satisfaction of the Controls, shall have the right to change the external elevations and grades for the Dwelling other than as specified in this Agreement ..." In the GENERAL portion of Schedule "A" item 3 states "All house renderings and interior drawings are artist's conceptions." Therefore this claim is not warrantable.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal orders Tarion to disallow the Applicant's claims under appeal.
LICENCE APPEAL TRIBUNAL
Released: November 22, 2010
KEN SELBY Member