A Victoria pair has been ordered to pay more than $50,000 by the Supreme Court of B.C., to the people they sold their home to almost four years ago after an underground oil storage tank was found on the property in Esquimalt.
Christopher Warren and Antonia Warren were ordered to pay $44,774.30 in damages, plus $10,655.03 in litigation costs to William Walton and Nikolas Hill for the costs they paid to remove the tank and to remediate the contaminated soil associated with it.
According to the province, oil tanks have been used to heat homes for decades but are becoming obsolete as more effective heating methods are introduced. They also state that petroleum hydrocarbons and other substances can easily leak from underground storage tanks and migrate to other properties.
Walton and Hill purchased the property, located in the 1100-block of Bewdley Avenue, in early 2016. They assert the Warrens breached the contract of purchase and sale by failing to remove the oil tank before the sale concluded.
In an affidavit filed on behalf of both Walton and Hill, Walton stated the realtor they used had warned them that many older homes in Victoria have buried oil tanks. Following her advice, the pair included an oil tank addendum in their contract to protect them against any costs associated with removing an underground oil tank and remediation of resulting contaminated soil.
The addendum stated the sellers would ensure that any underground oil storage tank would be removed before the sale completion date, which was Feb. 29, 2016.
Between Jan. 2 and 8, 2016 two companies performed scans of the property. Neither of the companies found evidence of a underground oil storage tank and the contract was completed on the agreed-upon date.
Two years later the basement of the home on the property flooded and required replacement of the home’s drain system. On Nov. 16, 2018, a contractor discovered an underground oil storage tank on the property.
The underground oil storage tank was removed, along with the contents being pumped out for disposal. A representative of the Esquimalt Fire Department noted the soil around the underground oil storage tank appeared to be contaminated.
The plaintiffs paid $42,720.28 in total for the removal of the tank and soil remediation. In addition to the final charge, Walton and Hill were unable to pay all of the invoices when they were delivered and they incurred carrying charges of $577.74.
Neither Christopher Warren or Antonia Warren had any knowledge of the underground oil storage tank and stated in an affidavit that when they purchased the property they received a report that there were no underground oil storage tanks on the property. In addition to the report the couple had a company scan the property and received an oral report saying there was no evidence of underground oil storage tank.
“I accept that the defendants were surprised to learn of the underground oil storage tank on the property,” wrote Justice Heather MacNaughton in her reasons for judgment, which were posted online last week.
According to MacNaughton, the claim was not a complex one and revolves around the interpretation of the addendum. The Warrens argued the addendum should be interpreted as only requiring them to remove and remediate any underground oil storage tank that was discovered prior to the completion date.
MacNaughton disagreed, stating the addendum was not “ambiguous” and required the defendants to remove “any” oil tank on the property.
“As an oil tank was discovered some years after the completion date, the defendants had not complied with the terms of the addendum on the completion date. They were in breach of the addendum,” she wrote.
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