They agreed on $3.5 million for an Ioco Road house – it was the $176,250 that landed them in court.
In February 2021, Bonnie Elizabeth Tracey and Glen Michael Tracey walked through a Port Moody house marketed as a custom-built luxury home with the “absolute best finishings,” according to a recently released court ruling.
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60 problems
However, after a home inspector identified dozens of problems with the house, the Traceys and their real estate agent passed along a detailed list of 60 deficiencies to sellers Pedram Hakimishokati and Azam Rafiei Moein.
The two parties agreed to reduce the home price from $3,550,000 to $3,525,000. They also added a note to the contract stipulating that, until those 60 problems were fixed at the seller’s expense, five percent of the purchase price would be kept in trust by the Tracey’s counsel.
Shortly before buying the home in April 2021, the Traceys and their real estate did one last walk-through inspection and found “numerous deficiency items still outstanding,” according to the ruling.
An inspector’s report detailed 10 items including marks on the marble kitchen countertop, warped closet doors, gaps along baseboards.
The two parties also argued about whether or not settlement cracks in the home had been fixed. Hakimishokati and Moein said the settlement cracks had been remedied. The Traceys said otherwise.
Competing claims
Both parties laid a claim to the $176,250, albeit for slightly different reasons.
The Traceys argued they were entitled to the holdback money because Hakimishokati and Moein failed to fix all the problems as required by the contract.
Hakimishokati and Moein argued that they were entitled to the holdback money because they complied with the contract. There is a contradiction in the contract, according to Hakimishokati and Moein. One aspect of the contract calls for the deficiencies to be remedied. However, the contract also stated that, on closing, the property: “shall remain in the same condition as when the [Traceys] viewed it on February 6, 2021.”
That argument failed to persuade Justice McDonald. The parties agreed that, “except for fixing the identified deficiencies, the property would be delivered in substantially the same state as it was when the buyers viewed it.”
The contract stated that no further changes to the house would be made beyond what had been agreed, McDonald ruled.
“There was a meeting of the minds in respect of the contract,” McDonald wrote.
The contract states, “in clear and unequivocal terms,” that the holdback money would go to the Traceys to fix the deficiencies “as they see fit,” McDonald ruled.
Cost
The parties disagreed on how much it would cost to fix up the remaining problems, with estimates ranging from approximately $13,000 to $40,000.
Given that the remaining repair costs are far below $176,250, awarding the Traceys the holdback money would be: “extravagant and not a genuine pre-estimate of damages,” according to Hakimishokati and Moein.
However, McDonald ruled that the Traceys should be awarded the entire $176,250.
“[The Traceys] took specific contractual measures – which the plaintiffs agreed to – to ensure the property met their exacting standards. “
