2022 QCCQ 1411, 2022 QCCQ 1411

Myers c. Prevost 2022 QCCQ 1411 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL Civil Division N° : 500-32-161144-193 DATE : April 4, 2022 ______________________________________________________________________ PRESIDED BY JUDGE HENRI RICHARD, J.C.Q. ______________________________________________________________________ STEPHEN MYERS Plaintiff v.

JILL PREVOST Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] In October 2017, the owner of a duplex in Hampstead hired real estate brokers Jill Prevost and Jennifer Radowitz to sell her building. [ 2 ] In the listing prepared by the brokers Prevost and Radowitz, there is mention of a double garage which is then used for storage located at the rear of the duplex. [ 3 ] On October 26, 2017, three days after the signing of the brokerage contract, Mr.

Stephen Myers and his spouse submitted a promise to purchase, which was accepted the same day, through two other real estate brokers. [ 4 ] In execution of the obligations included in this promise to purchase, the owner of the immovable retains the services of a land surveyor in order to prepare a certificate of location which is produced on November 10, 2017. [ 5 ] Mr. Myers acknowledges that he had knowledge of this certificate of location prior to the signing of the deed of sale on February 7, 2018. [ 6 ] Mr. Myers complains that Ms.

Prevost did not indicate in the listing that it was impossible for a vehicle to use the driveway leading from the street to the garage, located at the rear of the duplex, since the setback does not comply with municipal regulations. [ 7 ] This being so, Mr. Myers had to take steps with the Town of Hampstead to obtain a minor exemption. He is therefore claiming from Ms. Prevost $4,857 representing all the damages caused by her alleged fault. [ 8 ] In her contestation, Ms.

Prevost argues that she was not at fault because the listing she prepared with her colleague Jennifer Radowitz clearly indicates that the double garage in question was used as a storage facility and that there was no discussion between Mr. Myers, his brokers and them as to his intentions to use it to park his car. [ 9 ] Therefore, according to Ms. Prevost, it was up to the brokers representing Mr. Myers and his spouse to verify the use they wanted to make of this garage and its compliance with the municipal by-laws. [ 10 ] Ms. Prevost added that if she had been advised that Mr.

Myers and his spouse wanted to use the garage for anything other than storage, she would have advised them to consult the Town of Hampstead. ISSUE [ 11 ] Does Ms. Prevost commit a fault by not mentioning in the listing that the driveway allowing access to the garage does not comply with municipal by-laws? CONTEXT AND ANALYSIS [ 12 ] The relevant features from the listing prepared by Ms. Prevost and Ms. Radowitz are as following : - Parking Driveway (3), Garage (2) - Garage Detached, Double width or more - Featuring double garage + 3+car parking

- A double garage is available for storage, or remove some bushes and pave the driveway so you could use one garage. There is currently 3-car parking with 2 side-by-side. Possibility for many more [ 13 ] While attempting to set up his driveway and garage to allow him to park his vehicle indoors, Mr. Myers was informed that the driveway did not meet the setback requirements of the municipal by-law. [ 14 ] Consequently, in June 2019, Mr. Myers presented an application for a minor exemption to the Town of Hampstead for the following reasons : I have an acquired right to the garage dwelling behing my house.

The by law stipulates 1 meter set back from my neighbor to the north. This would prohibit access to the garage. It would make the access to narrow. I am requesting a set back of 1 foot ideally or 2 feet maximum to be able to drive to the garage. (as is reproduction) [ 15 ] On September 3, 2019, the Council of the Town of Hampstead approved by resolution the application for a minor exemption to “allow the setback for vehicular access at 0m (0 ft) instead of 1m (3.28 ft)”. [ 16 ] In addition, Mr. Myers filed a complaint against Ms.

Prevost with the Organisme d'autoréglementation du courtage immobilier du Québec (OACIQ). At the end of his investigation, the assistant syndic of the OACIQ, Mr. Yves Gardner, concluded as follows : We concluded that the broker violated his ethical obligations : • By not being able to demonstrate the accuracy of the information he or she provided to the public Therefore the broker received a written warning reminding her of her ethical obligations.

This warning will be placed on her record and may be used for a second or a subsequent offence. (as is reproduction) [ 17 ] The Tribunal is not bound by this conclusion of the assistant syndic of the OACIQ. [ 18 ] As indicated, the owner of the property sold undertook, in the promise to purchase, to provide Mr.

Myers and his spouse with « a certificate of location describing the current state of the IMMOVABLE » (article 10.3). [ 19 ] The certificate of location prepared by Wladyslaw Bielawski, land surveyor, on November 10, 2017, clearly indicates that the paved driveway in question infringes on the neighbouring property. Also, the certificate of location notes a contravention of the duplex and garage to the municipal by-laws in these terms : 14- MUNICIPAL ZONING BY-LAW [...]

b) The house in question is in accordance with the said current municipal regulation as regards its establishment inside the limits of the immovable property, except the front setback, because of non-compliance with the minimum required at the present time of 20 feet or 6,10 meters. However, according to the information taken in the municipality, the original permit of construction No. 139 was emitted on December 11 th ,1923 and previous front setback was 15 feet or 4,57 meters.

c) The garage in question is not in accordance with the said current municipal regulation as regards its establishment inside the limits of the immovable property, because of non-compliance with the lateral and rear setbacks of 3.28 feet or 1,0 meter, but according to the information taken in the municipality, this garage was in accordance with the previous municipal zoning by-law No. 16 in force on year of construction of the garage. (emphasis added) [ 20 ] In addition, in the deed of sale entered into on February 7, 2018 before Notary Yannick Dery, Mr. Myers and his spouse, as "Purchaser", undertake to : 1.

Take the immovable in its present state declaring that he has seen and examined the same, to his satisfaction, and he has himself verified with the competent authorities that the use that he intends to make of the immovable is in conformity with the laws and regulations in force . (emphasis added) [ 21 ] This last clause is a standard clause contained in a deed of sale. [ 22 ] As a result of the certificate of location of which Mr.

Myers was aware before signing the deed of sale and of his undertaking to verify with the competent authorities that the use he intends to make of the immovable complies with the regulations, it is unfounded to accuse Ms. Prevost of any fault whatsoever with regards to the wording of the listing. [ 23 ] In fact and in law, Mr. Myers only has himself to blame if he failed or neglected to execute his own obligation to check with the Town of Hampstead that the building complied with its regulations, given the use he wanted to make of the garage located at the rear of the duplex.

[ 24 ] A real estate broker is not a land surveyor or a notary. Unless he specifically represents that the building complies with all municipal regulations, it would appear to be beyond his scope of obligations to verify with municipal authorities the conformity of a building. [ 25 ] In addition, it should be noted that, in the sale of the building in question, Mr. Myers and his spouse were represented by two real estate brokers who had to know their intentions with respect to the use of the garage. In such a case, it is rather incongruous to make Ms.

Prevost, who represented the seller, bear the obligation to inquire with the buyers as to the use they intended to make of the garage. [ 26 ] However, the formal obligation to verify with the competent authorities whether Mr. Myers' intended use of the garage complies with municipal regulations rests on his shoulders, as demonstrated by the undertaking contained in the above-mentioned clause of the deed of sale. [ 27 ] Finally, the Court does not understand why Mr. Myers is directing his claim only against Ms. Prevost when Ms.

Jennifer Radowitz was also acting as the listing real estate broker. [ 28 ] As a result of the foregoing, the Court concludes that Mr. Myers does not discharge his burden of establishing, by a preponderance of the evidence, the merits of his claim, in particular because he cannot impute to Ms. Prevost his own carelessness in not verifying that the use he intended to make of the garage complied with the municipal regulations.

FOR THESE REASONS, THE COURT : DISMISSES Stephen Myers’ appliclation; CONDEMNS Stephen Myers to pay Jill Prevost 103 $, as legal costs. __________________________________ Henri Richard, J.C.Q. Date of hearing : March 25, 2022