2015 QCCQ 10529, 2015 QCCQ 10529

Mamontov c. Farhat 2015 QCCQ 10529 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-140026-131 DATE: July 14, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ VLADIMIR MAMONTOV […] Dollard-des-Ormeaux, Qc […] Plaintiff v.

BASILE FARHAT […] Kirkland, Qc […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Vladimir Mamontov, who purchased a residence from the Defendant Basile Farhat in October 2012, sues Mr Farhat for $ 6,496, an amount that he incurred to have work done on the foundation wall in the garage area of the home, to prevent water leaking. [ 2 ] Mr Mamontov alleges that there was no evidence of water infiltration when he inspected the building prior to the sale.

He asserts that the works he had carried out were necessary to correct a hidden defect. [ 3 ] By way of contestation Mr Farhat alleges that, during the time he owned the home, he never experienced any other infiltration. [ 4 ] At the hearing, he also produced evidence from a contractor who had proposed work remedying the problem with the installation of a membrane and other associated works for $1,379.85, significantly less than the amounts spent by Mr Mamontov (P-5). [ 5 ] As well, at the hearing, Mr Farhat pointed out passages in the inspection report prepared for Mr Mamontov (P-4) alerting the buyer to the presence of cracks in the foundation wall, a condition he alleges was also noticed by other inspectors who had reported on the condition of the building to other potential purchasers.

ISSUES [ 6 ] To resolve this case, the Court must answer the following questions: 1. Is the water infiltration of which the Plaintiff complains a defect in the property that could not have been detected at the time of sale through a reasonable inspection ? 2. Is the defect sufficiently serious that the Plaintiff would have not purchased, or would have not paid so high a price if he had known of it ? 3. Did the Plaintiff have an awareness of the defect when he agreed to complete the sale ? 4. Was the Defendant notified of the defect when it was discovered and given an opportunity to inspect and to repair ? 5.

Did the Defendant admit liability ? 6. What is the amount of reduction of price to which the Plaintiff would be entitled ?

FACTS [ 7 ] The Court was not shown a copy of the bilateral promise to sale, but the parties agree that it contained a clause permitting an inspection and the possibility for the purchaser to withdraw from the sale if the result of the inspection was not satisfactory. [ 8 ] The property was inspected by IA Industries Inc. who gave Mr Mamontov a report of some 50 pages including photographs and schematic diagrams as well as the inspector’s observations and recommendations (P-4). Attached to the report is the vendor’s declaration on the OACIQ Form that had been given to the inspector.

Under item D-5 of this form were it is asked : “à votre connaissance, y a-t-il déjà eu des 5.2 présence de fissures de fondation, pourriture ou autres problèmes affectant le sous-sol », Mr Farhat had checked off his response as "no".

Mr Farhat affirms as well in his testimony that he did not notice any water infiltation in the garage during the period he owned the home from 1988 onward. [ 9 ] During the inspection, the Plaintiff noticed cracks in the foundation wall with his inspector and Mr Farhat was asked whether there had been any problem with leaks, to which he replied “no”. [ 10 ] Mr Mamontov testified that when he visited the garage from the inside, he could not see much, because of the volume of objects that were stored in the garage by the owner. [ 11 ] Cracks were readily noticeable, however, in the foundation wall, as is made clear from the inspection report.

We find on page15 of 50, under the heading: Recommendations: FOUNDATIONS Foundation Condition: • Typical minor cracks Task: Repair Time: Immediate [ 12 ] Just below, on page 16 of 50, there is a standard diagram showing a cracked foundation wall and explaining the technique of injecting polyurethane or epoxy.

On page 12 of 50: Landscaping General Conditions: • Exposed foundations – cracked or spalled Implication(s): Chance of water entering the house ⎜ Chance of damage to structure ⎜ Chance of structural movement Task: Repair Time: Immediate [ 13 ] Then, after taking possession, Mr Mamontov testified that he noticed water infiltration in the garage, at the base of the foundation wall where it meets the floor-slab. He also saw what he refers to as leaks, at the level of tie rods part way up the foundation wall.

The pictures also show a certain amount of efflorescence on the foundation wall in various places. [ 14 ] Mr Mamontov testified that when he first noticed the water infiltration in late January, he contacted his inspector and his real estate agent. Mr Farhat came to the house in February.

At that time, there was no water leaking, but he was shown where the leak had occurred and was shown photographs taken when the infiltration was occurring. [ 15 ] Initially, Mr Farhat took the approach of offering to pay for the repairs, but since Mr Mamontov had complained to him of many other defects in the building, he insisted upon obtaining a signed letter from Mr Mamontov before doing the repair.

The letter would renounce any further claims. [ 16 ] Mr Mamontov replied on May 28, 2013 (P-3), saying that he would confirm that, once the repairs are completed successfully, he would not bring any claims regarding the issue identified by the home inspector prior to the sale of the property. [ 17 ] Mr Mamontov also insisted upon a formal 10 year written warranty from the contractor.

He also imposed as a condition that, assuming good weather, the contractor provided by Mr Farhat must complete the work by May 31, failing which Mr Mamontov’s contractor would do the work at Mr Farhat’s expense. [ 18 ] The idea of a release prior to the repairs, as opposed to after the repairs, became a problem and Mr Farhat changed his approach. Since Mr Mamontov did not want to immediately release further claims, Mr Farhat now proposed to have the cost of the work to be done by his contractor split half and half. At this point, Mr Farhat denied liability.

He writes: I think this is a very just solution, since the leak is probably due from the crack in the wall, you knew about it and you have an inspector and this is not a hidden defect. And then it does not cost 6000 $ to repair a crack. [ 19 ] On May 21 st , Mr Farhat had obtained a quote from Excavation Sima for an amount of $ 1,379.85, taxes included (P-5).

The work described is similar to the work described in Mr Mamontov’s estimates, except that in the estimate of Construction Pole Inc. (P-11), the contractor that eventually did the work, item 11 is: “Put new French drain and connect it with the old one”. [ 20 ] The house was built prior to the 1960’s and did not necessarily have a French drain.

[ 21 ] As it turns out, when Mr Mamontov had the work done, it was confirmed that no French drain was installed. There was no French drain, and none was installed.

There were other changes to the work, but the price remained the same. [ 22 ] The discussion between Mr Farhat and Mr Mamontov ended on May 29, 2013, when Mr Mamontov wrote: “To be clear, the hidden defect in question is not the crack in the wall, but the water leak”. [ 23 ] There being no agreement, Mr Mamontov proceeded to have the work done by Construction Pole Inc., and to pay the total bill of $ 6,496. [ 24 ] Photographs taken show the complete excavation around the walls of the garage and the application of a membrane.

In the vicinity of a tree that Mr Mamontov decided not to remove, the wall was sealed from the inside. [ 25 ] Mr Mamontov presents various photographs in an attempt to show that the foundation wall was not in good condition and probably had leaked before. [ 26 ] There was, however, no expert testimony to confirm this. [ 27 ] Upon receiving a letter of demand to pay the amount spent, Mr Farhat responded (P-2 / P-5), enclosing a copy of his estimate from Excavation Sima. [ 28 ] He reiterates an earlier offer, to pay half of the estimate of $ 1,200 i.e. $ 600 plus tax, continuing to deny liability.

ANALYSIS [ 29 ] Water infiltration in an unfinished garage is not a normal condition by today’s standards. However, houses built before the advent of French drains, can be susceptible to water infiltration which, at the time these building were constructed, was not considered to be of vital importance in unfinished parts of a basement. [ 30 ] Because the standards have improved and purchasers now expect entire basement areas to be free of any water infiltration, standards provide for proper drainage with a peripheral perforated drain (French drain).

Contractors sometimes include membranes and other techniques to make a foundation perfectly impervious.

When a water infiltration problem occurs in an older house and an owner installs a French drain, with or without a membrane, he is improving the property as compared with its value in its original condition. [ 31 ] In the present case, it is not altogether clear why water infiltrated into the basement: was it because of the cracks that were visible, or because of other cracks that could not be seen, either because they were below grade or hidden from view because of clutter in the garage during the pre-purchase inspection? [ 32 ] Whatever the exact cause of the water infiltration, cracks were visible in the foundation and were reported on the inspection report.

On page 15, they are referred to as typical minor cracks to be repaired immediately and on page 12, they are described in terms of a cracked or spalled foundation, with the implication of a water entering the house with a possible damage to the structure and possible structural movement. Again, the recommendation is to repair immediately. [ 33 ] The implication for an astute reader of the report would be that he should plan, in his budget, immediate repairs to the foundation cracks.

A prudent purchaser, having been alerted to the potential of water infiltration and having been given this recommendation, would have carried the investigation further to inform himself as to whether the cracks could be corrected from the inside of the house or whether excavation was required, and, whether it would be a good idea to upgrade the property by installing a French drain and possibly, a watertight membrane. [ 34 ] Because of the apparent presence of cracks and these recommendations from the inspector, it cannot be said that the condition of which Mr Mamontov complains is a hidden defect of which he was not aware at the time he agreed to purchase. [ 35 ] It is also questionable whether he would have cancelled the sale or insisted on a price reduction, had he been more alert.

The report contained a number of references to various problems and he purchased the home with the intention of carrying out some fairly major renovations.

He resold it a short time later. [ 36 ] Because of these circumstances, it is not clear that he would have paid a lower price if he had been more attentive to this specific issue of the condition of the foundation. [ 37 ] The Court accepts Mr Farhat’s testimony that he had not experienced water infiltration during his tenure. [ 38 ] This does not mean that the foundation wall was not, at certain times, saturated, which it likely was, because of the eventual occurrence of an infiltration of water after Mr Mamontov became the owner. [ 39 ] Meteorological conditions and the levels of saturation in the ground can vary from time to time, and the fact that water infiltration occurred in January 2013, does not give rise to a presumption that it had occurred previously. [ 40 ] There is no reason to doubt Mr Farhat’s testminony, just that there is no reason to doubt the Plaintiff’s testimony, when he shows photographs illustrating a significant amount of water along the floor of the garage, apparently coming from one of the walls. [ 41 ] The important issue is that Mr Mamontov, as a prudent purchaser, obtaining an inspection of the building with a view to buying it, renovating it and selling it, had ample warning that a potential for water infiltration existed and that he may wish to budget for the upgrading of a foundation wall that was more than 55 years old. [ 42 ] As to the cost of the repairs, it is difficult to assess whether the $ 1,200 solution was as good as the $ 7,000 solution proposed to Mr Mamontov.

It is debatable whether the impermeable membrane was truly required, and whether it was truly sufficient given that no

French drain was installed. Because we are dealing with repairs and renovations, as opposed to new construction, it is difficult to know which standards should apply. It is debatable. [ 43 ] Neither party provided an expert report about this matter.

Mr Réjean Therrien, the contractor who gave Mr Farhat his estimate, testified as to what he observed and what he would have done, but the evidence is inconclusive as to whether the Plaintiff’s solution was superfluous or necessary. [ 44 ] In conclusion then, the problem of which the Plaintiff complains results from the obsolescence of the construction as compared with current standards, a condition of cracking that was apparent and for which he had obtained the advice that repairs were necessary immediately to prevent the potential of water infiltration.

The Plaintiff is therefore not entitled to a reduction in price because of a hidden defect. [ 45 ] This is a case where each party should pay its own costs as certain documents only came out through the litigation process and were not fully disclosed before the proceedings were instituted. FOR THESE REASONS, THE COURT: DISMISSES the Plaintiff’s demand; THE WHOLE without costs. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: June 25, 2015