2016 QCCQ 9738, 2016 QCCQ 9738

Khan c. Zeeshan 2016 QCCQ 9738 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-146832-151 DATE: May 16, 2016 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ IMRAN KHAN -and- SUMAIRA CHAUDHRY Plaintiffs v.

ABDUL KARIM ZEESHAN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Imran Khan and Sumaira Chaudhry sue Abdul Karim Zeeshan for damages suffered as a result of the sale to them by Mr. Zeeshan of an immovable which violates various applicable requirements under municipal building by-laws. Context [ 2 ] On April 8, 2013, Defendant Abdul Karim Zeeshan sold an immovable property, a triplex, to Plaintiffs Imran Khan and Sumaira Chaudhry.

On May 14, 2014, Plaintiffs were contacted by the City of Montreal about certain irregularities and infractions regarding the immovable property under the applicable municipal by-law. In particular, changes made to the immovable as a result of renovations carried out by Mr. Zeeshan gave rise to several construction non-conformities and violations under the municipal regulations.

The City of Montreal officials informed the Plaintiffs that they were obliged to make the required changes in default of which they would be fined by the City of Montreal. [ 3 ] On the same day, namely on May 14, 2014, the City inspector remitted to Plaintiffs a copy of a municipal notice dated November 16, 2010 that had previously been sent to the Defendant, when the latter was the owner of the property [1] .

The copy of the document indicates confirmation of receipt by the owner at the time, namely by the Defendant. [ 4 ] Plaintiff filed the notes of the City inspector which confirm that Defendant was fully aware of the existing infractions under the municipal by-law, as a result notably of numerous telephone calls and meetings with the officials of the City of Montreal, and that such knowledge of Defendant existed well before the sale of the immovable to Plaintiffs. [ 5 ] The notes of the City inspector also show that Defendant had promised the municipal inspectors on several occasions that he was in the process of correcting these non-conformities. [ 6 ] However, in fact, Defendant never performed the required corrective work [2] . [ 7 ] On April 8, 2013, instead of making the required repairs, the Defendant sold the property to Plaintiffs.

Analysis and Decision [ 8 ] At trial, the Defendant admitted that he did not advise the Plaintiffs of the existence of these non-conformities nor of the receipt of the notice from the City of Montreal. [ 9 ] He claims that he was unaware of them. However, he offers no answer, credible or otherwise, to rebut the proof that he was made fully aware of them by the City officials before the sale. [ 10 ] Under the Deed of Sale [3] , Defendant declared that he had received no notice in that regard.

The relevant paragraph of the Deed of Sale states as follows: “He [seller] has received no notice from any competent authority to the effect that the immovable does not comply with the laws and regulations in force.” [ 11 ] Defendant also alleged in his defence that the sale was made without legal warranty. However, the Deed of Sale clearly states that the sale was made with legal warranty. [ 12 ] Furthermore,

Article 1725 of the Civil Code of Queb ec (“ C.C.Q. ”) states as follows: 1725. The seller of an immovable warrants the buyer against any violation of public law restrictions affecting the property which are exceptions to the ordinary law of ownership.

The seller is not bound to that warranty where he has given notice of these restrictions to the buyer at the time of the sale, where a prudent and diligent buyer could have discovered them by reason of the nature, location and use of the premises or where such restrictions have been registered at the registry office. [ 13 ] Defendant argued that the defects were apparent. Plaintiffs produce a pre-purchase inspection report that they obtained at the time of the inspection before the sale [4] .

This report did not reveal the municipal infractions and non-conformities in issue. [ 14 ] The Court considers that Plaintiffs acted as prudent and diligent buyers by using a professional pre-purchase inspector. Since the inspector was unable to ascertain the existence of these regulatory non-conformities or violations of public law restrictions, the Court rules that they were unapparent under

Article 1725 of the Civil Code of Quebec . Accordingly, that ground of defence is also rejected. [ 15 ] There was therefore a breach or non-performance by Defendant of the warranty of ownership by which Defendant guaranteed to the Plaintiffs that the property was not subject to violations of public law restrictions. [ 16 ] Furthermore, in light of the proof, it is clear that Defendant also committed a civil fraud under

Article 1400 and 1407 C.C.Q. [ 17 ] Mr. Zeeshan was aware of important facts regarding deficiencies and municipal violations with respect to the state of the property. He was aware that deficiencies and municipal violations would affect the Plaintiffs’ consent to the sale. Defendant not only omitted to disclose these violations but also made a false declaration in that regard in the Deed of Sale regarding the non-receipt of a notice from the municipality.

[ 18 ] There are four (4) different non-conformities that the City requires be corrected further to the violations of the applicable municipal by-law and building code with respect to renovations carried out by the Defendant before the sale: 1) the two (2) windows in the dwelling in the basement are too small.

They must be made larger and an additional window must be added in accordance with the applicable by-law and building code; 2) the height of the ceiling of the basement bedroom is too low and the floor must be lowered by at least three (3) inches in order to provide the minimum height required by law [5] ; 3) the garage of the property has been illegally converted to a dwelling. It is necessary to restore the premises to the state of a garage; 4) an additional exit door must be added to the basement. [ 19 ] According to the estimates filed [6] by Plaintiffs, the required corrective work will cost $14,500.

However, the Court considers that the details of the proposed work are insufficient on some of the minor costs. Nevertheless, the Court considers that sufficient proof was made to justify that the necessary corrective work will cost at least $12,500. Accordingly, Defendant will be condemned to pay Plaintiffs that amount; [ 20 ] Defendant did not offer any credible defence to his actions and omissions but stated instead that he was in the process of filing for bankruptcy under the relevant insolvency legislation. He was advised by the Court to notify the Court of a filing in bankruptcy immediately.

At the time of signature of the present judgment, the Court has not received any notice of bankruptcy of Defendant or notice of suspension of proceedings. FOR THESE REASONS, THE COURT: CONDEMNS Defendant Abdul Karim Zeeshan to pay Plaintiffs Imran Khan and Sumaira Chaudhry the amount of $12,500 with legal interest of 5% per year, plus the additional indemnity provided at

Article 1619 of the Civil Code of Quebec , starting from the date of the demand letter (Exhibit P-1), namely March 30, 2015; WITH JUDICIAL COSTS (Court Stamp) of $200.00 in favour of Plaintiffs Imran Khan and Sumaira Chaudhry. __________________________________ Jeffrey Edwards, J.C.Q.

Date of hearing: April 26, 2016