2020 QCCQ 2887, 2020 QCCQ 2887

Clark c. Abraham 2020 QCCQ 2887 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL “Civil Division” No.: 500-32-705225-185 DATE: June 10, 2020 ______________________________________________________________________ PRESIDING: THE HONOURABLE JO ANN ZAOR, J.C.Q. ______________________________________________________________________ CRYSTAL CLARK and MARVIN TAYLOR Plaintiffs v.

MOLLY ABRAHAM Defendant and FIRME D’INSPECTION EN BÂTIMENT MICHEL DESROSIERS & FILS Third party intervenor ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Crystal Clark and Marvin Taylor claim $15,000 from Molly Abraham in damages for latent defects as a reduction of the purchase price of the immovable that they purchased from her. [ 2 ] More specifically, the plaintiffs allege that poorly sealed windows and defective flashing caused the water damage to the basement of their residence on August 16, 2016. [ 3 ] Ms.

Abraham contests the claim. She argues that her immovable had no defects at the time of the sale and that the plaintiffs are using the claim to finance the renovation of the basement. [ 4 ] In the event she is condemned, Ms. Abraham asks that the building inspection firm that the plaintiffs hired to perform the pre- purchase inspection of her immovable, Michel Desrosiers & fils ( Desrosiers ), be forced to intervene. [ 5 ] Desrosiers did not file a defence to the application for forced intervention or appear at the hearing. ISSUE IN DISPUTE [ 6 ] The issues before the Court are as follows: (

a) Did the immovable purchased by Ms. Clark and Mr. Taylor have a latent defect at the time of the sale? (

b) If so, what is the amount of the reduction in the purchase price to which the plaintiffs are entitled? (

c) Is the application for forced intervention against Desrosiers founded in fact and in law? BACKGROUND [ 7 ] On June 13, 2016, the plaintiffs promised to purchase an immovable located on Westluke Avenue in Montreal ( the immovable ) from Ms. Abraham for an amount of $375,000 (D-2 bundled). According to the information on the descriptive listing (P-1), the immovable is a semi-detached bungalow built in 1954. [ 8 ] After the usual negotiations, Ms.

Abraham accepted the plaintiffs’ offer to purchase on June 17, 2016 (P-3). [ 9 ] On June 24, 2016, at the plaintiffs’ request, Desrosiers conducted a pre-purchase inspection of the immovable. The inspector had the seller’s declaration (P-2), and he completed and signed his report that same day. [ 10 ] On July 8, 2016, the parties signed the deed of sale before notary Maxime Major-Lacombe. The sale was made with legal warranty and the plaintiffs took possession of the immovable on July 20, 2016 (P-4).

[ 11 ] On August 16, 2016, it rained in Montreal. [ 12 ] Mr. Taylor explained that his wife called him at work to tell him that the basement of their residence had flooded. He quickly went home to assess the damage. [ 13 ] According to the daily precipitation report provided by Ms. Abraham, the metropolitan region received a little over 39 mm of rain on August 16, 2016 (D-1). [ 14 ] In the following days, the plaintiffs sought the advice of their building inspector and of their notary Major-Lacombe. [ 15 ] Mr. Taylor also tried to reach Ms.

Abraham but ended up having to leave a message with her daughter. [ 16 ] At the same time, Mr. Taylor called Ms. Abraham’s real estate agent, Aleksandra Mieszkowska, to explain the situation. [ 17 ] In September 2016, the plaintiffs still had not heard from Ms. Abraham, so they sent her a written notice of disclosure of the defect. They asked her to

schedule an appointment with them at the residence so that they could find an acceptable solution. (P-6). [ 18 ] On October 3, 2016, Ms.

Abraham acknowledged receipt of their notice of disclosure and told the plaintiffs that she considered their claims entirely false and unfounded (P-7). [ 19 ] On December 20, 2016, the plaintiffs hired the professional services of engineer and building inspector Stéphane Bossus to identify the most probable cause of the water infiltration and to suggest any corrective work required by the facts observed. [ 20 ] In his report dated March 20, 2017, Stéphane Bossus wrote « que des infiltrations d’eau perdurent dans l’immeuble depuis fort longtemps, et ce de façon récurrente » (P- 5). [ 21 ] In a letter dated April 24, 2017, the plaintiffs again invited the defendant to come to their residence to assess the damage (P-8). [ 22 ] The plaintiffs, who had no news from the defendant, undertook $36,725 of repair work in the summer of 2017. [ 23 ] On April 25, 2018, the plaintiffs instituted their claim before the Small Claims Division and voluntarily waived any claim exceeding the amount of $15,000.

ANALYSIS AND DECISION [ 24 ] First, let us set out the analytical framework of an action for latent defects. [ 25 ] In civil matters, the burden of proof rests on the plaintiff according to the principle of the balance of probabilities: the plaintiff must submit to the judge evidence that surpasses and dominates that of the defendant. [1] [ 26 ] The plaintiffs’ claim raises the issue of the applicability of the warranty of quality owed by a seller to a buyer pursuant to

article 1726 of the Civil Code of Québec (C.C.Q.): 1726. The seller is bound to warrant the buyer that the property and its accessories are, at the time of the sale, free of latent defects which render it unfit for the use for which it was intended or which so diminish its usefulness that the buyer would not have bought it or paid so high a price if he had been aware of them.

The seller is not bound, however, to warrant against any latent defect known to the buyer or any apparent defect; an apparent defect is a defect that can be perceived by a prudent and diligent buyer without the need to resort to an expert. [ 27 ] The criteria for applying this warranty are not controversial. They come from the case law, which is consistent and abundant. [2] In Leroux c.

Gravano , [3] the Court of Appeal reiterated that to maintain an action for latent defects, the Court must find the following: • the property is affected by a serious defect, that is, a defect that renders the property unfit for its use or that significantly diminishes its usefulness; • the defect existed at the time of the sale; • the defect was latent. This notion is assessed objectively and is accompanied by the buyer’s duty to inform himself or herself; and • the defect was not known to the buyer. [ 28 ] In addition to these four criteria,

article 1739 of the Civil Code of Québec provides that the purchaser must give notice in writing of the defect to the seller within a reasonable time after discovering it. [ 29 ] Although it has been recognized that a prudent and diligent buyer is not required to « ouvrir les murs » or « creuser les fondations », [4] a sign can ground suspicion and require the buyer to conduct a more thorough examination. Indeed, the reasonable buyer who has a serious doubt must investigate further. [5] [ 30 ] The particular circumstances of each case will determine whether an action will fail or succeed. It all depends on the assessment of the evidence.

[ 31 ] Let us now apply this analytical framework to the facts of this case. (

a) Did the immovable purchased by Ms. Clark and Mr. Taylor have a latent defect at the time of the sale? [ 32 ] In this case, Ms. Abraham’s defence rests essentially on a denial of any defect affecting her immovable. [ 33 ] Her testimony, along with that of her real estate agent and of her daughter Shermine, was to state that the immovable was free from any issue that could have caused water infiltration. [ 34 ] Ms. Abraham emphasized that her daughter and granddaughter lived in her basement, as did lodgers, which was only possible because the immovable met certain compliance requirements. [ 35 ] Ms.

Abraham firmly denies that the issue reported by the plaintiffs can be attributed to the immovable; rather, she ascribes it to the plaintiffs’ actions [ 36 ] With respect, and for the reasons that follow, this defence of negation does not withstand the analysis of the facts presented by the plaintiffs. [ 37 ] The evidence establishes that the plaintiffs’ immovable suffered water damage on August 16, 2016. The plaintiffs both assert it, and the Court believes them.

Even if the defendant doubts their testimony, the Court cannot give credence to her position because it has no basis; she did not visit the property in spite of an invitation to do so. [ 38 ] The extent of the water infiltration renders the property unfit for its use and significantly diminishes its usefulness. Therefore, the seriousness of the defect has been established. [ 39 ] Next, the plaintiffs claim that they were unaware of the leakage issues of the basement windows at the time of purchase.

In short, they state that the defect was unknown to them. [ 40 ] Since the buyer is not subject to a presumption of knowledge, it was up to Ms.

Abraham to prove that her purchasers were aware of this issue. [6] It comes as no surprise that the defendant did not adduce such evidence because she denies that the claim is well founded and insists that her immovable had no defects at the time of the sales transaction. [ 41 ] In doing so, she established the unknown nature of the defect for the buyers. [ 42 ] The case law teaches that the latency of the defect is assessed objectively, that is, by reviewing the adequacy of the buyer’s examination of the property in light of what a prudent and diligent buyer of identical expertise would have done. [7] [ 43 ] The plaintiffs claim that they visited the property three times and conducted a reasonable, careful and serious examination.

They noticed a stain on the basement carpet and asked the defendant for an explanation. They were satisfied with her answer that it was just dirty. [ 44 ] The plaintiffs claim that they never noticed any signs of water infiltration in the basement. They also say that there was no reason to doubt Ms. Abraham’s declaration that there had never been any water infiltration in her immovable, and specifically, never in the basement (P-2 bundled, to question D3). [ 45 ] Mr.

Taylor noted that they had hired Desrosiers to assist them, thereby establishing how seriously they examined the property before purchasing it. [ 46 ] It is appropriate to note here that the defendant did not allege that the plaintiffs tried to avoid or shorten visits of her immovable. Quite the contrary. Ms. Abraham stated that the plaintiffs visited at least seven times before presenting their promise to purchase.

Real estate agent Aleksandra Mieszkowska confirmed this, and it implies that they had the opportunity to see what there was to see. [ 47 ] At the hearing, she repeated that the stains on the basement carpet were not from water damage, but from dirt. The expert Bossus denied that fact. After cutting the carpet, he noted the presence of mould on the planking of the subfloor and on the underside of the underpad.

He stated that the combination of those findings and the volumetric swelling of the subfloor is evidence of recurrent water leakage (P-5 at 26). [ 48 ] Clearly, the defendant’s explanations do not counter the observations and conclusions of the expert Bossus. [ 49 ] That being said, at the time of the pre-purchase visits, there were no indications or signs alerting the plaintiffs to the issue of water infiltration, and although the stain on the carpet may have been a sign, the defendant’s reassuring remarks concealed it.

As a result, the hidden nature of the defect has been proved. [ 50 ] The last criteria, that is, the anteriority of the defect, remains to be assessed. In this case, the plaintiffs must prove that the defect was present when they acquired the residence on July 8, 2016. [ 51 ] The plaintiffs’ evidence rests essentially on the expert Bossus’s written report.

In his opinion, there had been recurrent water infiltration in the immovable for a very long time (P-5 at 28). [ 52 ] His conclusion is based on spray tests aimed at reproducing the effect of rain, which established that the water infiltrated mainly through the basement window frames and the joint between the top of the foundation wall and the masonry. [ 53 ] Expert Bossus wrote that the water coming from the masonry facings shows that the flashing was inadequate or missing, a condition that was hidden from everyone when the pre-purchase inspection visits took place (P-5 at 40).

[ 54 ] Last, Mr. Bossus noted that the advanced state of rot of some of the structures of the subfloor support the idea that the water infiltration had been occurring in the immovable for a long time (P-5 at 41). [ 55 ] Ms. Abraham’s general denial defence is insufficient to contradict the opinion of the expert Bossus. [ 56 ] As a result, the plaintiffs have clearly established, on a balance of probabilities, that the Westluke Avenue immovable was affected by a latent defect when they purchased it in July 2016. [ 57 ] Let us now address the issue of damages. (

b) What is the amount of the reduction in the purchase price to which the plaintiffs are entitled? [ 58 ] In their written claim, the plaintiffs allege that they spent an amount of $36,725 for urgent corrective work.

They produced invoices from the firm Bilbao rénovations inc. and invoices for material they purchased (P-9 bundled). [ 59 ] Only $15,000 is claimed before the Tribunal. [ 60 ] In matters of compensation for the partial interference with property, the Court must find a balance between the following two imperatives: on the one hand, it must ensure that the victim is not enriched by the compensation awarded, and on the other hand, it must avoid leaving the victim in a situation that does not correspond to full restitution. [ 61 ] In this case, the Court must place the plaintiffs in the situation they would have been in had the defendant fulfilled her obligation towards them by finding that the renovation of their basement results in an increase in value for them that must be reduced. [ 62 ] According to the description in the Bilbao invoices, it is clear that significant work was carried out in the basement.

Among other things, the Court notes the demolition and reconstruction of all of the walls and floors and the ceiling, the installation of new doors, the construction of closets, the replacement of the stairs, electrical work, the installation of lights, etc. [ 63 ] It appears, therefore, that in the summer of 2017, Bilbao rebuilt the plaintiffs’ entire basement. [ 64 ] Mr.

Taylor justified the extent of the renovations by the discovery along the way of poor workmanship and defects. [ 65 ] That may be true, but it is not a direct consequence of the water damage on August 16, 2016. [ 66 ] It should be noted that Ms. Abraham’s immovable was built in 1954, according to the standards of that time. Those standards may no longer be current or there may be poor workmanship.

The plaintiffs cannot raise the issue with the defendant, however, unless they had previously disclosed the situation to her and provided evidence of the defects they invoke. [ 67 ] As a result, only the damage and nothing but the damage resulting from the water damage can be compensated here. [ 68 ] Without the contractor’s presence, it is difficult, if not impossible, to determine which of the costs and the tasks performed are directly related to the water damage in August 2016. [ 69 ] It was incumbent upon the plaintiffs to administer that evidence, which they did not do. [ 70 ] However, since there was a clear fault committed by the defendant and damage resulted, the Court must establish the approximate fair compensation for the damage, with the information available to it. [8] [ 71 ] Given the lack of documentary evidence, the Court will use its discretion and establish the claim at $5,000. [ 72 ] In light of the conclusion with respect to the existence of a latent defect, it is not necessary for the Court to address the last issue in dispute. [ 73 ] Indeed, Ms.

Abraham did not prove that Desrosiers poorly executed his property assessment. FOR THESE REASONS, the Court: GRANTS the plaintiffs’ action in part; CONDEMNS Molly Abraham to pay $5,000, with interest at the legal rate, plus the additional indemnity under

article 1619 of the Civil Code of Québec , as of April 24, 2017, the date of the second formal notice; DISMISSES the forced intervention of Molly Abraham directed against Firme d’inspection en bâtiment Michel Desrosiers & Fils; THE WHOLE with legal costs of $202, representing the legal stamp.

__________________________________ JO ANN ZAOR, J.C.Q. Date of hearing: March 3, 2020