Kelowna woman who duped seller with edited photos wins in court
A Kelowna man who was duped by doctored photos of a property he planned to buy is out of pocket $1,400 after he tried to pull out of the contract once he realized the state the property was in.
According to an Aug. 14 BC Civil Resolution Tribunal decision, Braden Messenger had only seen photos of the $490,000 property when he signed a contract with Mary Jonina Margret Bell agreeing to buy it.
The contract stated that if he rescinded the sale he'd have to cough up 0.25% of the price which would cost him $1,225.
A few days after agreeing to buy the place, Messenger went to see it, only to find it wasn't what he expected.
"He discovered that Ms. Bell or her listing agent misrepresented its condition," the Tribunal ruled. "Ms. Bell or her agent added photographs to the property’s online listing that had been virtually staged and significantly altered, without including a disclaimer."
Messenger then pulled out of the contract and refused to pay the $1,225 penalty.
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However, Bell then took him to the online small claims court.
Messenger argued he shouldn't have to pay for cancelling the contract because Bell had misrepresented the state the home was in.
As evidence, he submitted before and after photos to the Tribunal.
"I find this evidence shows that the listing photographs were significantly altered, in addition to being virtually staged with different furniture," the Tribunal said. "The listing photographs were clearly edited to remove a large area of peeling paint in one bedroom."
Bell admitted the photos had been edited but argued by signing the contract he'd agreed to pay 0.25% if he pulled out.
The seller said that he could have just let his offer lapse by not removing the subjects and he wouldn't have been penalized.
While the Tribunal agreed the property had been misrepresented in the photos, it said that neither the Property Law Act nor the Home Buyer Rescission Period Regulation included an exemption not to pay if a home had been misrepresented.
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Messenger’s move to sign the paperwork saying that he was rescinding his offer sealed his fate.
"While a party to a contract may... rescind a contract because of a material misrepresentation by the other party, that is not what Mr. Messenger did in this case. Instead, by signing the Notice of Rescission, Mr. Messenger specifically acknowledged that he was rescinding the contract under (the) Property Law Act," the Tribunal ruled.
The Tribunal ruled the regulations state that rescinding an offer this way means the buyer must pay the seller 0.25% of the purchase price.
Ultimately, the Tribunal ruled that it did not have to determine whether Bell misrepresented the property’s condition because Messenger had, by signing the Notice of Rescission, agreed to pay it.
The Tribunal ordered him to pay the $1,225 fee for backing out, plus interest and fees totalling $1,423.
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