2012 QCCQ 3817, 2012 QCCQ 3817

Samaha c. Cytryn 2012 QCCQ 3817 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-118875-097 DATE: May 11, 2012 ______________________________________________________________________ BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ ANIS SAMAHA REEM KAFENA […] Dollard-des-Ormeaux, Quebec […] Plaintiffs v.

JERRY CYTRYN BETH FISHMAN […] Montreal, Quebec […] Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Anis Samaha and Reem Kafena, purchasers of a residence located at 30 Malard, in Dollard-des-Ormeaux, on June 8, 2009, sue the purchasers, Jerry Cytryn and Beth Fishman, alleging latent defects affecting the property that they discovered after the sale. [ 2 ] In the aggregate, the reduction of price claimed for these defects is $4,643. [ 3 ] There are six items: 1. deterioration of panels finished in melamine of two kitchen cabinets requiring replacement; 2. the vanity in the basement bathroom was found to be in unacceptable condition. 3. a floor joist in the family room was found to the deflected and uneven and a repair was required before new hardwood flooring could be installed; 4. there was water damage to a wall and floor of the family room adjacent to the rooftop balcony and above the garage requiring repairs. 5. an infestation of carpenter ants nesting somewhere in the house and originating from a dead tree in the backward; 6. water infiltration in the basement utility room. [ 4 ] For items #1 through #4 and #6, the Defendants contest the claim on the basis that the conditions described were either known to the Plaintiffs or they could have been detected by them upon a diligent pre-purchase inspection. [ 5 ] With respect to item #6, they allege that the insects of which the Plaintiffs complain were not present at the time of the sale. [ 6 ] They also allege that, with respect to the floor joist and the water infiltration in the family room, they were not given sufficient notification and therefore repairs had been carried out before they were able to assess the causes of the condition and the probable cost of repairs.

ISSUES [ 7 ] The Court must determine for each of the six items whether the Plaintiffs have a valid claim for reduction of price because of serious defects present at the time of the sale that were neither disclosed by the vendors, detected through their inspection nor discoverable on a ordinary inspection without the assistance of an expert. [ 8 ] The Court must assess whether the defects are such that the purchasers would not have purchased the property or would not have paid so high price had they been aware of them. FACTS [ 9 ] The property was on the market in February 2009.

The Defendants received the Plaintiffs' offer (P-10) on February 17, 2009.

The counter-offer was accepted February 18 th , 2009, the sale being conditional upon a satisfactory building inspection. [ 10 ] The Plaintiffs hired Pro-Inspexx Services of Kirkland, the business name of Peter Elliott, an AIBQ Certified Inspector and CAHPI National Certificate Holder. [ 11 ] Mr Elliott inspected the house on February 19, 2009, and prepared a detail report. [ 12 ] The property was found acceptable by the purchasers and the dead of sale was notarised on June 8 th , 2009. [ 13 ] After moving in on June 12 th , the Plaintiffs sent the Defendants a letter of demand (P-3) dated July 3 rd for the first five items mentioned above claiming an aggregate of $5,192.25 taxes included. [ 14 ] Around June 13 th or 14 th , Mr Samaha contacted his agent (Reem Kafena's mother) who contacted the Defendants' agent Jeff Groper. [ 15 ] Mr Groper testifies that when he visited the property, the carpeting in the family room had been removed and there was an infestation of small "critters" resembling small moths.

He reported the matter to his clients, the Defendants, who told him that they had not had any problem with bugs during their ownership of the building. [ 16 ] Just prior to the letter July 3 rd , Mr Cytryn went to the house to pick up mail and was shown inside. The work to deal with the joist had already been done and the floor had been closed back up. [ 17 ] The kitchen cabinets and the vanity in the basement had not yet been replaced.

According to Anis Samaha, Mr Cytryn was able to see that there were some dead ants. [ 18 ] The Plaintiff came back after the letter of demand of July 3 rd , with his brother-in-law, Phillip Cohen, a person knowledgeable in building matters, on July 14 th . [ 19 ] Mr Cohen states that he did not see any dead ants. At this point in time, the interior work was completed or near completion with the painting having already been done. [ 20 ] Clearly, at the time of this visit, there was not much that could be detected concerning the floor joist and the water infiltration because the repairs were almost completed.

ANALYSIS [ 21 ] Dealing with each of the items in turn: 1. Kitchen cabinets [ 22 ] Much of the discussion at trial centered on the issue of whether the poor condition of the inner floor of the cabinets was something that could be detected with a normal visit. [ 23 ] Mr Elliott maintained that it is not his practice to remove the contents of a cupboard during a pre-purchase agreement.

The Plaintiffs stress the fact that the floor of the cupboard was covered in a rubber-mesh material (P-12). [ 24 ] The Defendants state the position that the cupboards were more than 20 years old and that the condition the Plaintiffs complain of is ordinary wear and tear. [ 25 ] In the Court's view, the condition of the inner panels of the kitchen cabinets is something that a diligent inspection would have revealed without the necessity of any expert intervention. [ 26 ] While there are limits to the amount of moving of moveable effects that can be practically done during a pre-purchase inspection, in the present case it would not have been unusual or inopportune for the purchasers to request moving the contents in the base of the kitchen cabinets to discover their condition. [ 27 ] The photos (P-7, page 2) show the presence of black marks on the white melamine surface, this is a condition that was very apparent.

It would have been different if the Plaintiffs or their inspector had requested permission to take a closer look and the sellers

had done something to prevent them from having this access. 2. The vanity in the basement bathroom [ 28 ] P-7, page 3 shows the condition of the interior of the vanity. The severe deterioration of the melamine surface of the back panel is clearly apparent. The Plaintiffs did not allege that this condition was hidden by the presence of objects in the vanity at the time of their inspection. It was an apparent condition. 3.

The family room floor joist [ 29 ] The Plaintiffs and their inspector, Mr Elliott, assert that during the visit, there was no sign of an unevenness in the floor, which was covered with carpet and underlay. [ 30 ] Mr Cohen, who is perhaps more sensitive because he is involved in the building business, states that the unevenness could be sensed under the carpet. [ 31 ] In either case, despite the anomaly to the floor joist, the floor was clearly functional and the unevenness did not present a problem if the floor was carpeted. [ 32 ] In assessing whether a condition represents a defect, the test is whether there is a significant impairment to the functionality of the building in the manner used by the sellers. [ 33 ] There clearly was no such lack of functionality.

In deciding to remove the carpeting, which functioned well, and replace it with hardwood flooring, the Defendants required a high level of consistency in the surface and this required upgrading the underlying floor, at a cost of approximately $1,750. The defect is not serious. It is not a structural problem. It does not affect the functionality of the floor as used by the sellers even though it was necessary as part of the Defendants' improvements. [ 34 ] As well, the fact that this alleged defect was not notified to the sellers before the repair work had been carried out is a bar to the claim. 4.

Water damage and infiltration in the floor and wall of the family room. [ 35 ] Signs relating to this problem were noted in Mr Elliott's report. The "Summary Page #2" under the heading garage contains the following remark: Action Necessary – There are some water stains in the ceiling that show evidence of a current water leak. Further investigation is needed. Recommended to inspect the balcony above the garage when the snow is gone. We also recommend removing the gyproc at the interior to verify the point of the water entry.

Note – The owner declared that this leak occurs rareley and that they have not repaired the damages since it happened. [ 36 ] In the detailed report at page 48, the same text is found along with a photograph where the signs of water infiltration are indicated with an arrow on the ceiling of the garage. [ 37 ] This area corresponds to the floor of the family room and, in the

summary at page 4, one reads: Family Room Walls: Attention Needed – The walls at the door frame is this room show a condition that needs some attention. There is evidence of an unrepaired stain apparently caused by a prior moisture leak. [ 38 ] The same text appears in the detailed report at page 45.

There is no photograph. [ 39 ] A photograph taken after the sale (P-7, page 5) shows the presence of water damage and mold in the gyproc and floor and reveals an area on the doorway where the paint is warn off and the underlying wood appears to be grey [ 40 ] There were sufficient signs, and also the inspector's warning and admonitions to further investigate the problem, to establish that this was an apparent defect. [ 41 ] Although the exact cause and the full extent of the condition are not known, there is sufficient evidence that would have led a prudent purchaser to suspect that there was a serious problem and to make further inquiries and investigations. [ 42 ] The Defendants were quite open about the problem.

The fact that they made a declaration to the inspector is obvious from the note appearing in his report. [ 43 ] They reported it to their agent who knew that houses of this particular model often had this problem, relating to the exposure of the family room to the elements and the presence of a rooftop terrace adjacent to the family room above the garage. [ 44 ] He made a point of mentioning it to any prospective purchasers including the Plaintiffs and their agent.

[ 45 ] The Plaintiffs' agent did not testify to contradict this assertion. 5. The infestation of carpenter ants. [ 46 ] This a classic case of a latent defect in that neither party was aware of it. If untreated, it would develop into a serious problem. Had they known of it, the Plaintiffs would have insisted on the problem being solved before accepting the sale. [ 47 ] It may be that the ants were localised in the areas that had been subject to water damage but this is not determined to a satisfactory degree.

The Court treats it, therefore, as a separate defect, and not as part of the water damage. [ 48 ] The Court does not doubt the sincerity of the Plaintiffs' testimony that the bugs appeared when the renovations were carried out and that they have reoccurred frequently. [ 49 ] Given the temporal coincidence of the discovery of the insects at the commencement of the renovation work, which opened the walls, it is extremely unlikely that these insects came into the house as a result of the work being done.

They must have been there already. [ 50 ] Plaintiffs claim the costs of removal of the tree in the backyard but there is no evidence that this is, in fact, the cause of the problem. [ 51 ] Besides, the condition of trees in the backyard is something that was very apparent at the time of the sale as is demonstrated by the photograph (P-7, page 8). [ 52 ] The removal of a dead tree adds value to the property and this is not an element of prejudice. [ 53 ] The Plaintiffs spent $350 in 2009 for services of an exterminator and, at the time of the institution of the action, contemplated repeating the procedure at the same cost over a five-year period.

By dealing with the problem promptly, they mitigated their damages. [ 54 ] In fact, they have spent $200 per year as appears from the invoices P-11 and P-13. [ 55 ] The Court will award $1,150. 6. Water infiltration in the basement utility room [ 56 ] The problem was notified to the Defendants by letter dated July 22 nd (P-4).

The letter alleges discoveries of the problem of June 11 th , 2009, when water infiltrated in the room during a rainy period. [ 57 ] In photographs (P-7), the condition is apparent on page 9, where the presence of water on the floor is clearly visible. [ 58 ] A photo of the same area appears in Mr Elliott's report on page 9. The text reads: Action Necessary – There is evidence of water entry or damage in the basement level. There is staining noted. The stained areas are now dry.

This makes it difficult to determine if the damage was caused by a prior leak or ongoing water penetration. [ 59 ] This is a clear warning to the purchaser making the defect apparent. The problem, a hole in the foundation, was solved with a $250 injection of polyurethane to prevent any future leaking. CONCLUSION [ 60 ] Of the various problems alleged by the Plaintiffs, all were without merit, except the problem relating to an infestation of insects. [ 61 ] The claim is valid for an amount of $1,150. Because most of the Plaintiffs' claim failed, there will be no award as to costs.

FOR THESE REASONS, THE COURT: CONDEMNS the Defendants to pay, to the Plaintiffs the sum of $1,150, together with interest at the legal rate of 5% per annum and the additional indemnity provided at

article 1619 of the Civil Code of Quebec , calculated from July 3 rd , 2009 without costs; __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: April 30, 2012