2023 QCCQ 10306, 2023 QCCQ 10306

Boev c. Anastasio 2023 QCCQ 10306 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-161409-208 DATE: December 11, 2023 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ VALENTIN BOEV and VALENTINA BOEVA Plaintiffs Cross-defendants v.

GABRIEL ANASTASIO and GUILLAUME CARLI and YANNICK LE MIGNON Defendants/Cross-plaintiffs ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiffs rented their chalet to defendants, and are now suing them for unpaid rent ($2,500.00) and for damages to the property ($5,727.58). [ 2 ] Defendants are counter-suing plaintiffs for $1,300.00. THE FACTS [ 3 ] On October 31, 2017, the parties entered into the following rental agreement: The lessee rents the chalet, located at 48 ch.

Bombardier, Potton, QC, JOE 1X0, fully equipped from November 15, 2017 to April 15, 2018 at a monthly rate of $1,000. A damage deposit of $300 is payable at signing the agreement and reimbursed one week after vacating the premises provided the property is left clean and without damages. The rent is payable as follows: $1,500 + $300 (damage deposit) at signing the agreement and receiving the key $1,000 on the 1 st of each month, starting January 1 st , 2018 $500 on 1 st , April 2018. Payment of the electricity bill will be responsibility of the lessee, who shall transfer the account to their name.

The reading of the meter is…………….

Snow removal will be responsibility of the lessee. The house is rented to 6 persons (plus a dog). Smoking in the house is not acceptable. The garbage should be put in the respective 3 containers (organic-compost, recycling, trash), and left, at the curb to be picked up on Monday as per the county schedule. Signatures: (sig.) V.

Boev Date: 31.10.2017 Gabriel Anastasio: (sig.) 6 novembre 2017 Guillaume Carli: (sig.) Yannick Le Mignon: (sig.) (agreement, exhibit P-1) [ 4 ] Defendants initially paid plaintiffs $1,800.00, as per the terms of the agreement. [ 5 ] Defendants began occupying the premises on November 17, 2017, and were there mainly on the weekends. [ 6 ] On the evening of Friday, December 1, 2017, there was no running water in the chalet. [ 7 ] On Saturday, December 2, 2017, defendant Anastasio contacted plaintiff Boev, who was in Florida at the time, to advise him accordingly.

Boev told Anastasio where the water-pump was located, and asked him to check if it was working. He also instructed him to check the breakers in the garage. [ 8 ] The defendants then went to the shed where the water tank was located, and noticed that the temperature was extremely low and that the water-pump and the shed were not insulated.

They immediately increased the temperature, and then went into the garage, which was extremely messy, to check if the circuit-breaker was on, which it was. [ 9 ] Anastasio reported back to Boev, who undertook to call a plumber. [ 10 ] Approximately 90 minutes later, the water came back on. Upon learning this, Boev cancelled the plumber’s visit. [ 11 ] Boev insists that the water was off for only 15 minutes, but the Court gives more credence to the defendants’ testimony, as they testified in a most credible and convincing fashion. [ 12 ] On January 2, 2018, the problem reoccurred.

Le Mignon had to disconnect the electricity on the water-pump, as there was water leaking. [ 13 ] On January 3, 2018, Boev called Anastasio, screaming and blaming defendants for what had occurred. Defendants were taken aback by Boev’s behaviour, as he was agitated and insulting. What is more, he blamed defendants for the state of the garage, forbade them to return to the chalet, and threated defendants to take and keep their personal belongings, including their costly ski equipment, to pay for the water-pump repairs.

In other words, Boev decided to take the law into his own hands. [ 14 ] On the following day, Le Mignon went to the chalet to retrieve defendants’ belongings. [ 15 ] Defendants left the various keys to the property behind, the whole as per Boev’s instructions (house keys in the BBQ, on the deck; shed keys, hanging on a nail). [ 16 ] On November 7, 2019, Anastasio sent the following email to Boev: Hi Mr.Boev, We are sorry for not showing up to the meeting on Saturday the 6 th and for not contacting you either. We have never been threatened this way before and we were scared of going back to your place.

We agree to clean up the house, since we’ve left it rapidly and shocked about the threats. For the water pump situation, you were contacted early December about the pump in the shed that we were not told about... We thought the problem was fixed( since none of us are plumbers). On January 2 nd 2018, when we left the house, Yannick one of the three leasee noticed that the pump was leaking so he unplugged it right away. If your pump was worn out, it is neither our duty nor our responsibility to fix it or pay for it.

We have no experience with winter conditions in the eastern townships or with a house that has an external water pump in a shed that sits on dirt. We are reasonable people and will clean up and leave the place like we found it. But we do not feel comfortable to either sleep or leave

personal belongings in your house anymore. If you agree, the leasees will meet you on Saturday morning the 13 th to clean the house. Finally, you have been paid for the month of January 2018 and you have our 300$ deposit. We do not feel comfortable to stay one more night in your house.

We feel that the amount of money received will conclude the agreement. (sig.) Gabriel Anastasio Thank you (email, exhibit D-2) [ 17 ] Boev did not accept defendants’ offer to settle the matter amicably, as proposed in the last paragraph of his email. [ 18 ] In fact, earlier that day, Boev called 911, met with police and accused defendants of theft and vandalism.

The « Rapport d’Événement » (exhibit P-2) however concludes as follows: « Aucun dommages dans… (Non Fondé). » [ 19 ] On April 16, 2018, Boev sent Anastasio the following email: Hi Gabriel Anastasio, Guillaume Carli, and Yannick Le Mignon, Your lease ended y este rday, April 15 2018. By now you owe me the rents from February till April 15th, a total of $2500. Please return the th ree sets of keys to the property.

I invite you to co m e Potton not later than April 22, 2018, so we can jointly evaluate the damages caused by you and your guests and decide what kind of action you should take to restore the property to the condition at the beginning of your lease. Gabriel, forward the email to the other signers of the lease contract and ensure that each one confirms personally the receipt of it. Otherwise I will assume that you are the sole responsible for the acts of vandalism and break-in. In case you do not act responsibly I will have no alternative but to take a legal action against you.

The police report on the acts of vandalism and break-in at my property as well as numerous pictures taken there will be presented as evidence. Regards, V. Boev (exhibit P-9) [ 20 ] On September 19, 2019, he sent them the following demand letter: Gabriel Anastasio, Plant Manager Planiform Conveyors 1060 Nationale, Terrebonne (Québec) J6W 6C1 Sir, I am writing to inform you that I am claiming the sum of $8 227,58 from you for the following reasons: • Unpaid rents • Vandalized house, garage, and yard at 48 Ch. Bombardier, Mansonville, QC This letter constitutes formal notice to pay me the above sum within 10 days.

Otherwise, I will take legal action against you immediately and without further notice. I confirm that any proposal to engage in mediation or negotiation will be considered before court action is taken. Please act accordingly. V. Boev

[...] , Mansonville, QC, [...] (exhibit P-3) [ 21 ] On October 4, 2019, Boev filed suit: 1. The Defendant has not paid the due amount of $2500 as per our agreement of 31.10.2017 2. The Defendant is responsible for vandalization of the house, the garage, and the yard at 48 Bombardier Rd., Masonville. So I claim $5727,58 for damages caused to my property as per police report # 378-180108-003. [ 22 ] Defendants’ defense and cross-demand, dated November 7, 2019, read as follows: - M. Boev nous accusait d’avoir vandalisé sa résidence. - M.

Boev nous a interdit d’accéder à sa demeure sans payer la réparation de sa pompe à eau. - - M. Boev nous a dit qu’il a prit no effets de valeur et qu’il les garderait jusqu’à ce qu’on paie la réparation de la pompe à eau. Nous avons perdu le lien de confiance avec M. Boev. Gabriel Anastasio Guillaume Carli Yannick Le Mignon Nous réclamons le dépôt de sécurité et le mois de loyer que nous avons payé sans jouir de la résidence. - Nous n’avons pas endommagé la résidence – Manque d’eau dans la résidence. - Nous n’avons pas jouit du moi payé (mois de janvier 2018) - M.

Boev nous a interdit de retourner dans la résidence. Pour ces raisons, la

partie défenderesse demande à la cour de : Condamner solidairement la

partie demanderesse à payer à la

partie défenderesse la somme de 1 300 $, avec intérêts calculés au taux de /% l’an, à compter du 3 janvier 2018 et l’indemnité additionnelle prévue à l’

article 1619 du Code civil du Québec , à compter du 3 janvier 2018. Ordonner l’annulation du contrat qui fonde la demande originaire, soit : Contrat de location du 15 novembre 2017 au 15 avril 2018, qui n’est pas un bail. DISCUSSION AND CONCLUSIONS Principal action A - Arrears [ 23 ]

Section 1854 of the Civil Code of Quebec states as follows: 1854. The lessor is bound to deliver the leased property to the lessee in a good state of repair in all respects and to provide him with peaceable enjoyment of the property throughout the term of the lease.

He is also bound to warrant the lessee that the property may be used for the purpose for which it was leased and to maintain the property for that purpose throughout the term of the lease. [ 24 ] Clearly, a chalet with repeated water problems does not constitute a property in a good state of repair and does not provide peaceable enjoyment of the property. [ 25 ] Boev, who was in Florida when the water-pump malfunctioned, was not in a position to take care of the problem in a timely fashion, and should have sent a plumber on the premises, to ensure that the problem would not reoccur. [ 26 ] The uninterrupted provision of water was central to the enjoyment of the leased premises.

In fact, in his email dated January 8, 2018, Boev admitted that “without water the house is inhabitable” (exhibit P-9). [1] [ 27 ] Furthermore, defendants deserved to be spoken to with courtesy and respect, without the threat of abusive measures and retaliation. [ 28 ] Under the circumstances, defendants cannot be held liable for the months during which they did not occupy the premises, given, moreover, that Boev refused to give them access thereto and falsely accused them of theft and vandalism (s. 6, 7, 1375 and 1458

C.C.Q.). In his email dated January 8, 2018, Boev wrote: Hi Gabriel, You neither came to the meeting, nor contacted me to set up another one at later time. My daughter came Saturday at noon from Montreal and my son came in the early afternoon without any problem, so I cannot accept your excuse with the weather. If you repair the pump, clean up the mess in the house, and respect the rules, you can continue your rental agreement.

Otherwise I will turn to the police to register break in and vandalism case, will file a claim against you at court, and you'll have to pay for the caused damages and the due rent until the end of your contract anyway. I am expecting your immediate response. Valentin Boev (exhibit P-9) [ 29 ] In addition to the foregoing, there is no evidence that plaintiffs attempted to mitigate their damages by renting to others, as was their obligation under

section 1479 C.C.Q. [ 30 ] Plaintiffs’ claim for arrears is therefore denied.

B - Vandalism and Damage to the Property [ 31 ] Plaintiffs’ claim for damages to the property is also denied, for the following reasons. [ 32 ] The Court heard all 3 defendants, as well as 2 additional witnesses, who had personal knowledge of the facts, and who were all very credible witnesses. [ 33 ] Furthermore, police report P-2 states that no damages could be “concretely attributed” to defendants. [ 34 ] The Court believes that defendants acted in a responsible and reasonable fashion, and did not damage plaintiffs’ property. [ 35 ] What is more, the alleged damages, as set out in list, exhibit P-12, remained unproven and unsubstantiated by a preponderance of evidence (s. 2803 and 2804 C.C.Q.). [ 36 ] Plaintiffs did not file proofs of purchase or of property value with regards to the items allegedly damaged.

One need only look at the pictures of the used fabric on the sofa, to glean that the furnishings were neither new nor of good quality.

In fact, as stated by several of the witnesses, the chalet, its interior and furnishings, as well as its exterior, the garage, the shed and their contents, were old, tired and worn. [ 37 ] It is mind-boggling that plaintiffs would expect to receive $325.00 for an old and dismantled fridge, stored in a decrepit garage. [ 38 ] Also of note, plaintiffs’ pictures, filed as exhibits P-4 and P-7, were taken months after the fact. [ 39 ] Plaintiffs’ claim is clearly unfounded and abusive, and cannot be granted.

Cross-demand [ 40 ] As regards the cross-demand, defendants wish to be reimbursed the $300.00 security deposit they paid at the execution of the agreement (exhibit P-1). [ 41 ] Given that defendants undertook to clean the chalet on September 13, 2019, but never did, they are not entitled thereto. This will serve as compensation to plaintiffs for cleaning costs. As for defendants’ claim for reimbursement of the rent paid for the month of January, 2018, it is also denied, and will serve as one month’s notice to plaintiffs.

WHEREFORE THE COURT HEREBY: DISMISSES the principal action; DISMISSES the cross-demand; EACH PARTY paying its own costs.

__________________________________ ELIANA MARENGO, J.C.Q. Dates of hearing: December 13, 2022 and October 12, 2023