2016 QCCQ 4005, 2016 QCCQ 4005

Klemm c. Abdelhadi 2016 QCCQ 4005 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF Montreal TOWN OF Montreal Civil Division No: 500-32-142946-146 DATE: February 22, 2016 ______________________________________________________________________ BY THE HONOURABLE SCOTT HUGHES, J.C.Q. ______________________________________________________________________ Sean Klemm and Julie white Plaintiffs v.

Amanda Abdelhadi and David whitaker Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Sean Klemm and Julie White (“the Purchasers”) allege that the home they purchased from David Whitaker and Amanda Abdelhadi (“the Vendors”) was, at the time of the purchase, affected by latent defects.

They claim the sum of $5 847.87 for the cost of “urgent repairs” to the drain system. [ 2 ] The Vendors contest stating that the drain system was not affected by latent defects but that its state was simply the result of age. Also, they argue that the repairs were not urgent and were done before they received notification. Thus, they were not able to inspect the premises or the proposed repairs. Obviously, they had no occasion to do the repairs themselves.

The issues [ 3 ] Were the Vendors correctly notified prior to the repairs being done? [ 4 ] Have the alleged latent defects been proven? [ 5 ] Can the cost of repairs be granted? The facts [ 6 ] Purchasers acquired their home on August 6, 2012. The property is a large bungalow built in 1961 or 1962. The property listing shows that different improvements had been made over recent years. [ 7 ] Purchasers visited the property on more than one occasion, either together or with Ms. White’s father. On each occasion, they noticed a dank odour in the basement.

They concluded that this was caused by the presence of pets and old carpeting. [ 8 ] The property was also inspected by a professional building inspector prior to the purchase. In his report [1] he writes: Waste plumbing Drain piping – installation 29. Condition: . A complete inspection of the plumbing system (more then a visual inspection) would require a plumber to put a camera down the drain lines to look for blockages, damaged pipes, rusted pipes and the connection to the city sewer lines.

With older homes, getting a plumber to put a camera down the drain lines (and the French drains if they exist) is a good idea. With the camera inspection, you will get an idea of the condition of these hidden components that can be expensive to repair. Location : Throughout Task : Further evaluation

Time : Discretionary He also writes, concerning the sump pump: Waste plumbing Sump pump 30. Condition: . The very very old sump pump should be replaced. There are many issues with this setup and to correct them all would probably be more expensive than replacing the setup. 2) Float weights broken (had to patch them back together during the inspection). 2) No backflow valve on discharge pipe. 3) Electrical issues. 4) Missing lid.

Location : Basement Under Staircase Task : Replace Improve Time : Immediate [ 9 ] Over the following months, Purchasers renovated the basement by removing the carpeting and installing laminated flooring. However, the dank smell worsened. It was at its worst at the end of summer 2013. [ 10 ] In November of 2013, Purchasers had their drainage system inspected. They discovered that the sump pump was illegally connected to the city sewer.

As well, an inspection by camera in the main drain pipe showed that “cast iron under floor is finished” [2] . [ 11 ] On November 21, 2013, Purchasers received an evaluation of the work required: “approximately $4250. 2 ½ days max if no major surprises” [3] . [ 12 ] Work began on November 28, 2013. On the same date, Mr Klemm left a message on Mr Whitaker’s cell phone simply asking him to call him back. The message was in fact returned on the following day by Ms. Abdelhadi.

This was the first notification that work was underway. [ 13 ] The plumber’s bill shows that by this time two days of work had already been done. The work proceeded as follows: ▪ November 28 : 9 hours 30 minutes, ▪ November 29: 9 hours 30 minutes; ▪ December 2: 8 hours 30 minutes. [ 14 ] Written notification was not given to Purchasers until December 16, 2013. The specific claim is described in this letter [4] : […] This situation made the house un-livable as we are now in the winter months and the smell of sewage is unbearable with the windows closed.

For this reason we were forced to take immediate action following receipt of the plumber’s initial report. Expenditures to date to repair the latent defects have been $5,777.87, consisting of the following (supporting documentation attached): $445.53 for initial inspection, plus $5,481.09 for excavation & repair, less $148.75 for anti-gel faucet requested by owners out of convenience of having the pipe already exposed. An invoice to re-build the sub floor destroyed during excavation is estimated at an additional $450.

The Decision [ 15 ] Mr Patrick Girard an experienced plumber, with the same firm as the plumbers who did the work at the Purchaser’s home, testified that the life expectancy of a cast iron drain pipe under the cement floor is approximately 50 years. [ 16 ]

Article 1726 of the Civil Code of Québec . defines the warranty of the vendor: 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 any need of expert assistance. As well,

article 1739 must be cited: 1739. A buyer who ascertains that the property is defective may give notice in writing of the defect to the seller only within a reasonable time after discovering it. The time begins to run, where the defect appears gradually, on the day that the buyer could have suspected the seriousness and extent of the defect. The seller may not invoke tardy notice from the buyer if he was aware of the defect or could not have been unaware of it. [ 17 ] The rules concerning latent defects can be summarized as follows: 1. The defect must be serious and it must diminish the purchaser's use of the property; 2. It must have existed prior to the sale;

3. It must be hidden, notwithstanding a serious examination by the purchaser prior to the purchase; 4. The purchaser must notify the vendor of the defects, within a reasonable delay of their discovery. [18] Purchasers’ obligation under

article 1739 C.C.Q. is fundamental.

This notification is required in order to allow the vendoroccasion to inspect and to correct the latent defects himself if he so chooses. [19] This obligation suffers an exception that Plaintiffs here invoke, namely that the work undertaken was urgent. [20] A judgment of the Superior Court defines the type of emergency required[5]: “Une urgence, que la jurisprudence a décrite comme étant le cas où le bien est menacé par un dépérissement immédiat advenant le défautde remédier au vice » [Emphases in the original] [21] The burden of proof in this matter lies on the shoulders of Purchasers.

They must prove by preponderance of evidence[6] thatthe defects are in fact latent and that the work they undertook prior to notification was urgent. [22] The Court points out immediately that Vendors here have in no way repudiated their responsibility nor have they renounced totheir right to invoke the absence of notification. The Urgent repairs? [23] The Court concludes that the Purchasers have not established that the repairs done here were urgent as defined by jurisprudence.The odour in the basement of the property was present for more than a year.

Although it grew progressively worse, there is no evidenceto show that this caused the inhabitants of the house anything more than slight inconvenience. As for the sump pump, there is noevidence at all to show that this caused any inconvenience. The plumber discovered the problem on November 21, 2013. There is noserious explanation as to why Vendors were not notified then and there. As well, the work began a full week after the discovery of theproblems. It was not until the work began that Mr. Klemm left his first message on Mr. Whitaker’s cell phone.

This message gave noinformation whatsoever as to the reason for the call. The first specific information was received by Vendors on November 29. By this time, two- thirds (2/3) of the work had already been done. Purchasers emphasise that they did not have their Vendor’s coordinates. Thisargument does not stand up. When they, in fact, decided to give notification to the Vendors, their real estate broker was able to give thema cell phone number. They could have done this at any time between November 21 and November 28. [24] Clearly, the home was at no risk of ruin at any time.

The Purchasers lived in the house for over a year before discovering thatthe cast iron pipe needed replacing. They could easily have given notification on November 21, allowed the Vendors to visit the property(even on very short notice) and at worse left the house for three or four days before and while the work was being done. [25] It was perhaps more convenient to have the work done immediately, but in doing so, Vendors contravened a fundamentalobligation.

This is sufficient to dismiss the claim[7]: [30] En d’autres mots, la dénonciation constitue une condition de mise en œuvre de la garantie, hormis en certaines circonstances,notamment en cas d’urgence, de négation de responsabilité du vendeur au fait du vice, ou encore de renonciation, expresse ou implicite, à la dénonciation (Jean-Louis Baudouin et Pierre-Gabriel Jobin, Les obligations, 7e éd., par Pierre-Gabriel Jobin et Nathalie Vézina,Cowansville, Éditions Yvon Blais, 2013, par. 701; Pierre-Gabriel Jobin, supra, par. 168; Optimum, société d’assurances inc. c.Trudel, 2013 QCCA 716 , 2013QCCA 716 , par. 17; Quincaillerie Côté & Castonguay inc. c.Castonguay, 2008 QCCA 2216 , par. 7; Immeubles de l'Estuaire phase III inc. c.

Syndicat des copropriétaires de l'EstuaireCondo phase III, par. 161). Ces exceptions avaient également été reconnues sous l’ancien droit (Quintas c. Gravel, (QC CA), (C.A.)). [31] Il s’ensuit que le défaut de dénoncer s’avérera généralement fatal à une demande en justice pour récupérer les coûts deréparations (Immeubles de l’Estuaire; Quintas). [26] The Court will nonetheless discuss the merits. The cast iron drain [27] When an immovable has attained the extent of its normal lifespan, there is no latent defect. [28] Mr. Girard’s testimony leaves no doubt.

A cast iron drain pipe of the type in this home has a life time of 50 years. The home,built in 1962, was precisely 50 years old at the time of the purchase. The Purchasers should have expected that this drain pipe would bethe same age as the house. [29] There is nothing in the real estate listings filed[8] that could be construed as misrepresentation concerning renovations to thedrain pipe beneath the cement slab in the basement. By their description, these renovations appear simply cosmetic.

This is especiallytrue in view of the warning contained in the inspector’s report and referred to in paragraph 8 of this judgment. Nothing allows the Courtto conclude that Vendors were aware of the situation. The sump pump [30] The sump pump itself, as noted by the building inspector, required immediate replacement. Purchasers have established that thesump pump was however incorrectly connected to the city sewage system. They invoke a Municipal Bylaw that came into force on June15, 2009 and reads in part: “sump pits and sump pumps shall not be connected to the street sanitary sewage system”.

[ 31 ] There is no evidence from a municipal representative as to whether or not this bylaw had a retroactive effect, thereby compelling Vendors to have this work done into 2009. As well, there is nothing to show that the installation caused any inconvenience to Purchasers. Lastly, the description of the system in the inspection report leads the Court to conclude that Purchasers should have investigated further at the time of their purchase. The Purchasers have therefore not met their burden of proof on this aspect of their claim.

The Legal fees [ 32 ] Vendors have filed statements billed to them by a lawyer they consulted. Since no cross-demand has been filed, theses amounts cannot be granted. In any case, there is nothing in the proof to show that Purchasers have acted in bad faith or abusively and this would be, of course, the condition of entertaining such a claim [9] . The Legal costs [ 33 ] The parties appear to have received contradictory advice from different plumbers working for the same firm (those who did the work and the one who testified at trial). If this had not been the case, there would likely have been no litigation.

This is sufficient reason for the Court to dismiss the claim, each party paying its own legal costs. For these reasons the Court : Dismisses the claim of Sean Klemm and Julie White; Each party paying its own legal costs. __________________________________ SCOTT HUGHES, J.C.Q. Date of hearing: November 30, 2015